Jonathan Band, Disruptive Competition Project:

…the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate’s aggressive stance on copyright has literally forced the re-writing of history. … [Under existing precedent] DuVernay would have had a strong fair use defense had she used King’s actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate.

Earlier on the Martin Luther King Jr. estate here and here.

More: reader J.B. writes:

Note that even without the hard-to-defend serial legislative extensions of copyright term for existing works, copyrightable MLK stuff from 1965 would still not be in the public domain under the rules as they then existed (assuming, as seems plausible, that the estate had remembered to renew), although that wouldn’t be all that far off (2021, or maybe 1/1/2022).

Beyond that, here’s the thing: the exact boundaries of fair use are fuzzy because the doctrine as it has evolved is very fact-driven and context-specific. This means that aggressive rights-holders can, by a threat to litigate, probably chill some unauthorized uses that would be legitimate (and there must be some situations that go the other way, where the derivative user is well-funded and lawyered-up and the under-resourced rights-holder can’t afford to have the fight even though they might well be in the right). But it seems at least possible that any crisper/cleaner doctrine (where the boundary of what the rights-holder can forbid was so clear that no one would be chilled/intimidated by an over-the-top cease and desist letter) would end up being one that made a materially narrower scope of stuff qualify as fair use and thus non-infringing. Fuzzy rules are perhaps sometimes the worst legal regime possible except for the practically available alternatives.

My response:

Quite aside from which is the right legal rule, I also think that there’s a positive incentive effect to publicizing cases like this in which estates of notable persons either appear in a light of being unreasonably prickly themselves, or heedlessly sell rights to those who squeeze them with little regard for what the notable person stood for in life. The better known these cases are, the more likely it is that notable persons and their near families will think through how they might want to plan their bequests so that their estates will rest in the hands of those willing to cooperate with scholars, encourage derivative works, etc. King himself of course was cut down too young for us to expect this, but most major figures who leave a cultural legacy have more chance to plan, or their widows/widowers do.

Filed under: copyright, movies film and videos