Jonathan Band is a copyright lawyer and an adjunct professor at Georgetown University Law Center.

The new film Selma has sparked a bitter public debate, mostly concerning the film’s representation of President Lyndon Johnson’s stance on voting rights and how much artistic license is appropriate for a biopic centering on a major historical event. Less discussed, however, is the degree to which the MLK estate’s tough stance on copyright affected the historical accuracy of the film—and has affected many other films and books before it. What is lost when a biopic cannot take full advantage of its main character’s rhetorical brilliance? And what alternatives are available for filmmakers that want to produce history, not hagiography, about MLK?

Selma director Ava DuVernay may well have taken more license than artistically necessary in the confrontational scenes between Martin Luther King Jr. and President Johnson. But inaccuracies in other significant parts of the film were forced upon DuVernay by copyright law. The film’s numerous scenes of King delivering powerful speeches regarding civil rights all had to be paraphrased, because the MLK estate has already licensed the film rights in those speeches to DreamWorks and Warner Bros., for an MLK biopic Steven Spielberg is slated to produce.


The litigious MLK estate, controlled now by King’s descendants, has a long history of employing copyright to restrict the use of King’s speeches. The estate appears to have two objectives: maximize revenue and control King’s image. In the 1990s, the estate sued USAToday for publishing the full text of the “I Have a Dream” speech King delivered on the steps of the Lincoln Memorial in August 1963, and the newspaper quickly settled by paying for a license and attorneys’ fees. The estate then sued CBS for including footage of the speech in a segment of its documentary series The 20th Century with Mike Wallace. In its defense in court, CBS argued that the speech had entered into the public domain because King had not complied with the notice and registration requirements of the Copyright Act of 1909. The trial court agreed with CBS, but an appellate court reversed and ruled in favor of the MLK estate on narrow technical grounds. (Specifically, although the speech was delivered to a live audience of several hundred thousand people and broadcast to millions more, the appellate court treated the delivery of the speech as only a limited publication of the underlying text that did not trigger the 1909 Act’s notice and registration requirements.)

The MLK estate also sued the producers of Eyes on the Prize, an Emmy-winning documentary series on the civil rights movement, for the use of unlicensed footage of King speeches. This litigation settled when the producers reportedly paid the estate $100,000. Because of this dispute (and similar issues with other rights-holders), the series was out of circulation from 1993 to 2006, when PBS finally renewed most of the rights and edited the remaining unlicensed footage.

During the summer of 2013, as the nation was celebrating the 50th anniversary of the March on Washington, the MLK estate restricted broadcasts of “I Have a Dream,” but it did not lock down the speech altogether: It authorized sales of DVDs of the speech, and it licensed AT&T to use segments of the speech in cell phone ads. Over the years, the MLK estate has also licensed King speeches to be used in ads by Alcatel, Apple, Chevrolet and Mercedes. And it received over $700,000 from the foundation erecting the MLK Memorial in Washington, D.C., for the right to use MLK’s speeches and likeness in the Memorial.

How is it that one estate can control the use of speeches so central to American history 50 years after their delivery and 47 years after King’s tragic assassination?

One reason is that King was a private citizen. Had King been a federal government official when he wrote his speeches, those writings would always have been in the public domain. But because King was the extraordinary national political figure who was not a federal employee, the copyrights belonged to him and passed to his estate upon his death.

Another issue is that the term of copyright protection has grown increasingly long. The first copyright act adopted by Congress in 1790 provided a term of protection of 14 years after first publication that could be renewed for an additional 14 years, for a total of 28 years. The initial purpose of the exclusive rights granted by the copyright law was to provide authors with an economic incentive to create works for the public good. At the same time, the duration of the author’s monopoly was limited so as to enable other authors to build on the first artist’s work.

Thanks to aggressive lobbying by publishers, the estates of authors and, more recently, the motion picture studios, Congress has repeatedly extended the copyright term. In 1831, Congress extended it to two 21-year periods after first publication for a total of 42 years; and in 1909, Congress extended the term to two 28-year periods for a total of 56 years. Then, in the 1976 Copyright Act, in an effort to harmonize U.S. law with the international law of the Berne Convention, Congress lengthened the copyright term to the life of the author plus 50 years. In 1998, Congress added 20 more years of protection, to the life of the author plus 70 years, citing the law of the European Union as an international precedent.

The extensions have always been retroactive, applying to works already in existence. Thus, King’s speeches and other writings will not enter the public domain until at least 70 years after his death: January 1, 2039.

In Congress’ rush to please copyright owners, it has lost sight of the balance the founders intended. A term of protection of “life plus 70” grossly exceeds the economic incentive any author needs to create a work while constraining the ability of new artists to build on the original. And term of life plus 70 is particularly unnecessary in the case of Martin Luther King; King did not need any economic incentive to write his eloquent speeches, let alone a term of life plus 70.

Some agree that Congress has gone too far. The constitutionality of the most recent term extension in 1998 was challenged on the grounds that it went beyond the authority granted by Congress in the Constitution’s Intellectual Property Clause. That clause authorizes Congress to provide authors exclusive rights in their writings only for “limited Times.” In 2003, the Supreme Court rejected this challenge in Eldred v. Ashcroft, finding that a term of life plus 70 met the “limited Times” requirement because it had an end date—even though the term in practice could be as much as 10 times longer than the term adopted by Congress shortly after the ratification of the Constitution.

Congress in theory has the power to shorten the term. But since the enactment of the 1976 Copyright Act, the United States has joined a web of international agreements that mandate copyright terms of life plus 70. It is unlikely that Congress would adopt amendments to the copyright law that would place the United States in breach of these agreements.

Fortunately, filmmakers and historians are not entirely at the mercy of the MLK estate. The Copyright Act contains a fair use provision, which the Supreme Court in Eldred described as a “built-in First Amendment accommodation.” Fair use is a flexible, open-ended doctrine that, in the words of the Supreme Court, “allows courts to avoid rigid application of the copyright statue when … it would stifle the very creativity which that law is designed to foster.”

Fair use has been essential to allowing historians, text book authors, documentary filmmakers and news organizations to use excerpts of King’s speeches and other writings without paying exorbitant license fees or securing the permission of the MLK estate. In other words, fair use has enabled the use of King’s words without the MLK estate dictating what was said about King. On the flip side, fair use has also diminished public awareness of the MLK estate’s hard-nosed copyright positions.

In the past, the utility of fair use was somewhat constrained by the perception that it permitted the use of only short excerpts. This imposed on historians and documentarians the dilemma of choosing between using short excerpts or paying the MLK estate high license fees and subjecting themselves to estate interference. The budget of the project often dictated the approach.

Short excerpts and careful paraphrases are less than optimal in conveying the full context and flavor of King’s oratory, but nonetheless are adequate for the educational purposes of many books and documentaries. Even a few seconds of footage of the “I Have A Dream” speech are sufficient to convey to the viewer elements of King’s vision and power.

Where short excerpts and careful paraphrases have been viewed as inadequate is in the creation of feature films. Numerous directors, including Oliver Stone, have considered producing King biopics, only to abandon them when they could not meet the MLK estate’s demands for fees and image control. Ava DuVerney found a work-around in Selma by paraphrasing King’s speeches, but at the cost of authenticity, which is a particularly serious problem in a world where people are far more likely to learn history from a biopic than from a textbook.

And the work-around might not actually work as a matter of copyright law. A close paraphrase that captures the speaker’s style and substance may still infringe copyright. Although some King family members declared themselves satisfied with the film, the statute of limitations on copyright infringement is three years, so they have plenty of time to change their minds.

On the other hand, a paraphrase that does not accurately capture the speaker’s style and substance may place the speaker in a negative light. A paraphrase of one of King’s speeches at the MLK Memorial in Washington, D.C., made him sound, according to Maya Angelou, “like an arrogant twit.” The paraphrase subsequently was sandblasted off the monument.

DuVernay may have thread the needle of a paraphrase that captures the essence of King’s cadence and tone yet doesn’t infringe. But future filmmakers may not be as skilled—or as careful—as DuVernay.

Over the past two decades, fair use jurisprudence has evolved significantly, and courts now are far more likely to permit the use of significant portions of a work—and indeed, entire works—if the use is for a different purpose from the original work. Courts have found that fair use permits the significant amount of copying necessary to create search indices for websites, books and television programs; digital libraries for the print disabled; and databases of legal briefs. Under this line of cases, DuVernay would have had a strong fair use defense had she used King’s actual words rather than just paraphrased them. While King’s purpose was to motivate his audience to action, DuVernay’s purpose was to educate her audience about King and his role in changing this country.

DuVernay might have concluded that even though she had a convincing fair use argument, quoting King verbatim would have invited a lawsuit from the MLK estate, particularly given that the estate might not have approved of the manner in which King is portrayed in the film. She has stated that she didn’t seek the King estate’s copyright permission because, in addition to the fact that the rights had already been licensed to DreamWorks and Warner Bros., she knew the estate would demand control over the film’s depiction of King. And indeed, the film presents King three dimensionally, not as a saint but as a man with self-doubt and a complicated marriage. Perhaps DuVernay decided that it was worth sacrificing the accuracy of King’s words in order to minimize the risk of the MLK estate taking legal action that could delay or prevent the release of a film that accurately displayed the content of King’s character. Based on the estate’s track record, it is hard to fault this decision.