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Fair Use - this one is dumfounding

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Todd Terry
Fair Use - this one is dumfounding
on Aug 28, 2013 at 7:26:22 pm

Maybe this is common knowledge... but I just learned this today and it almost made my head spin.

Know why you don't see MLK's "I have a dream speech" much, or even read the words? Because the speech is copyrighted and is fairly vigorously and litigiously protected by King's estate.

They've sued USA Today in the past (and won) for printing the text. Apparently both CNN and MSNBC are having to pay, probably handsomely, for the rights to rebroadcast it today on the anniversary.

But how can this be? It was a speech, a live news event, right? No, a judge decided for the estate in 1999, ruling that it was a "performance" and subject to the same kinds of rights as any other artistic performance... not purely a news event.

More info (even if it is HuffPost)...

I'm not at all surprised at its limitations for commercial use for ads and such, but am pretty dumbfounded that legitimate news outlets actually have to license it just to show a clip of such a milestone event.


Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.

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Joseph W. Bourke
Re: Fair Use - this one is dumfounding
on Aug 28, 2013 at 10:45:48 pm

MLK is a cash cow for the King estate. You would imagine that his speeches and teachings would be more widely known (not that they aren't) if the family allowed certain usages to occur, such as in textbooks and other scholarly documents. Kind of strange to me...

Joe Bourke
Owner/Creative Director
Bourke Media

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Tim Wilson
Re: Fair Use - this one is dumfounding
on Aug 28, 2013 at 11:30:37 pm

In general, yet another example of why people should never assume anything about Fair Use.

The headline of the article (both at HuffPo and the Washington Post where it originated) is misleading, though. The Fair Use considerations applied to this speech are EXACTLY the same as to any other work. Citations of PORTIONS are allowed in a variety of contexts, laid out in those four very simple standards, stated in plain language.

That is, there are many, many fair uses of the speech.

It's just that there are virtually NONE in which its ENTIRETY is allowed. Not for this speech or ANY work -- not the I Have A Dream speech, not for Madonna's Like A Virgin video, not for an episode of Breaking Bad.

There are many books and recording collections that include the I Have A Dream speech, but the only legal ones are licensed. And to your point, Joe, I'm sure that the licensing terms are very different for school books than some other works.

But to your other point, I think they think that he gets the publicity he needs from excerpts, which encourage the licensing of whole works -- the proceeds of which fund the ongoing efforts he began during his lifetime.

The pioneer of this approach was Einstein, who very carefully controlled the licensing of his image during his lifetime to fund the political causes he was committed to. This continues. For grins, look up "Einstein's tongue" some time.

In the same way, there are a different set of Fair Use considerations for the visual RECORDING of the event. If YOU filmed the speech, you have some rights....but there are still rights that King's estate has to his IMAGE. You can't use YOUR recording any old way. An "I Have A Dream that all Dairy Queen drive throughs are open until midnight -- and now it's a dream come true!!!" commercial is probably a no-go. LOL

Our own Bevin Baddorf has written about this re Elvis Presley before. Elvis Presley Enterprises hold the rights to his IMAGE, as well as publishing rights to many of the songs...the RECORDINGS of which are held by Sony BMG...frequently seen in movies owned by MGM.

Now, it's easy to figure that Elvis is a "branded" guy, and you'll need to tread lightly, but there are many, many "branded" people beyond Einstein and King, including Chaplin, Marilyn, WC Fields, Mohammed Ali, and bunches of others.

Which should serve as a reminder that there are fair uses of copyrighted works, but no such thing as fair use for trademarks.

Again underscoring: there are many, many fair uses of the I Have A Dream speech, but part of fair use of any work is based on the amount of it you're using. All of it? No.

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Tim Wilson
Re: Fair Use - this one is dumfounding
on Aug 28, 2013 at 11:55:54 pm

I meant to mention in the case of Dr. King that this is complicated by the fact that he died intestate and broke. He gave away everything along the way, and people like Harry Belafonte held fundraisers to provide for his kids.

Oversimplified in my retelling, but there are aspects to his rights management that are kinda vague.

But the general principles of Fair Use are still in full effect.

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Tim Wilson
Re: Fair Use - this one is dumfounding
on Aug 29, 2013 at 12:15:30 am

Gol durn, not that I feel all that strongly about this, but I keep forgetting to add stuff. I was pretty sure about this, but I just looked it up -- yup, the full speech in the National Archive. I can't imagine that the rights holders don't know about this, and I can't imagine that the Archive is paying a licensing fee...although who knows?

Anyway, here's the full text.

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Sareesh Sudhakaran
Re: Fair Use - this one is dumfounding
on Aug 29, 2013 at 10:10:27 am

If it was written down (scripted) then wouldn't the same laws apply - that also protects lyrics, copy, screenplays and other written material?

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Andrew Rendell
Re: Fair Use - this one is dumfounding
on Aug 31, 2013 at 3:29:41 pm

I don't know what is dumbfounding about the case.

It WAS a news event fifty years ago, on the day it happened and during the next few days.

It isn't a news event now, now it's a historical event, so the news reporting aspect of fair use no longer applies.

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Bob Cole
Re: Fair Use - this one is dumbfounding
on Sep 12, 2013 at 12:48:07 pm

This particular example has always amazed me. According to a Washington Post story on the subject, the foundation that built the King monument on the Mall in Washington, DC paid the estate $700,000 to use his words and image on the memorial. I can understand a desire to protect King's legacy, but imho the King estate has long since crossed the line between enhancing his reputation, and profiting shamelessly from it.

I'm trying to understand this from the King estate's point of view. It reminds me of the assiduity with which Disney protects its copyrights (and lobbies Congress to extend the copyright period whenever expiration threatens one of their products). The upside, I guess, is that in the U.S.A., brazen self-interest only gets you more respect, not less. Rich people are admired here more than aristocrats in other places. It's an interesting country.

Speaking of which, remember that John F. Kennedy said, "My fellow Americans, ask not what your country can do for you, ask what you can do for your country."


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