Those “Selma” speeches? Not by King

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.

New York Times on the AG-trial lawyer alliance

The close working relationship between some state attorneys general and private trial lawyers — in which the AGs hire the lawyers to represent their states for a percentage fee of the haul — is not a new topic to us here at Overlawyered, but it’s nice to see it getting aired at length in the Dec. 18 New York Times piece by reporter Eric Lipton. The title gives a good introduction: “Lawyers Create Big Paydays by Coaxing Attorneys General to Sue” and in fact the private lawyers who commonly pitch the suits are themselves sometimes former state attorneys general, such as Michael Moore of Mississippi (of longstanding fame here), Patricia Madrid of New Mexico, Patrick Lynch of Rhode Island, Drew Edmondson of Oklahoma, and Peg Lautenschlager of Wisconsin. A few excerpts:

  • Law firm donations to AGs or “party-backed organizations that they run” “often come in large chunks just before or after” inking contracts to represent the state. A sidebar chart, “Political Gifts from Plaintiffs Lawyers,” confirms that most of the money flows to partisan attorney general associations ($3.8 million to Democrats and $1.6 million to Republicans over a decade) or state parties ($1.5 vs. $445,000) as opposed to candidates directly ($2 million vs. $240,000, not counting AGs running for governor).
  • When various AGs signed a brief to the Supreme Court supporting the plaintiff’s side in a securities litigation case, it was after being sedulously cultivated to do so by the lawyers.
  • “…at least three former attorneys general are pitching painkiller abuse cases to states nationwide, although no state has yet publicly signed up.” More on the Chicago and California-county painkiller cases here.
  • Yes: “‘Farming out the police powers of the state to a private firm with a profit incentive is a very, very bad thing,’ said Attorney General John Suthers of Colorado, a Republican and a former United States attorney.”

Full article, again, here. Michael Greve has further commentary on why it’s often AGs from small states who take the lead and whether business really started it all.

Best of Overlawyered — June 2014

U.S. Chamber’s “Ten Most Ridiculous Lawsuits”

The Chamber of Commerce is calling attention to its ten favorites for the year [via Bainbridge, list can be found there]. Eight of the ten may ring a bell with those who have followed our coverage (goblin-toppler, helmet toss, undecillion dollars, man saved from drowning sues rescuers, California ADA serial filer, falls after seeing “Dexter” ad on subway, caught sleeping on camera at Yankees game, claims “Frozen” based on own life story), while two are new to us:

8. Minimum Wage for Court-Ordered Community Service? (New York)
9. Jimmy John’s Lawsuit “Sprouts” Hefty Payday for Lawyers – Vouchers for Victims (California)

Police and prosecution roundup

  • “Georgia’s Highest Court Limits Power Of Private Probation Industry” [WABE, Augusta Chronicle, earlier here, here, here, and here]
  • Federal judge slams as “preposterous” DEA (Drug Enforcement Administration) actions in raid on Tampa pharmacy [Tampa Bay Online]
  • “At Least 40 Federal Agencies Now Conduct Undercover Operations” [Jesse Walker]
  • “’Gotcha’ program designed to rake in revenue”: “Nassau County Lawmakers Repeal Speed Camera Program” [CBS New York]
  • “Creepy”: “FBI Agents Pose as Repairmen to Bypass Warrant Process” [Bruce Schneier]
  • Somewhere an old guy in his room is wondering about ending it all, and somewhere a fanatic has been made happy [Elizabeth Nolan Brown on launch of Anaheim, Calif. shaming program to post names of sex purchasers online indefinitely]
  • Heather Mac Donald: In defense of broken-windows policing [Time]

Ohio shores up mens rea requirement in criminal law

The governor of Ohio has signed a historic measure providing that newly created crimes will be deemed to include a mens rea requirement unless lawmakers have made express provision for liability on a lesser basis. Now other states need to look at the same idea [Isaac Gorodetski/James Copland, Economics 21; Elizabeth Brown; text; earlier on mens rea here, here, here, here, here, here, here, here, and here]

Best of Overlawyered — May 2014