John Fund, National Review, January 4, 2015

The film Selma, a soaring biographical drama about Martin Luther King’s role in the 1965 civil-rights marches, opens nationwide this week. Critics and audiences are lavishing it with praise, but it could have been an even more meaningful film if its producers hadn’t been blocked by the King estate–represented by a for-profit company, King, Inc.–from using words from King’s speeches, including “I have a dream.”

Selma still works because filmmaker Ava DuVernay was able to construct phrases that conveyed King’s oratory without using his actual words. King, Inc., is controlled by King’s surviving children and holds the copyright to King’s speeches. It has so aggressively enforced its legal rights as to make it almost impossible to use those speeches without paying a hefty fee. Film rights to King’s speeches have been licensed to Steven Spielberg’s DreamWorks. DuVernay told the Washington Post, “We knew those rights are already gone, they’re with Spielberg.”

She also noted that she knew there were strings attached to the rights: “With those rights came a certain collaboration.” In other words, the King estate uses its control over the copyright to control how King is depicted. It’s perhaps no surprise that no major feature film about King has been produced before now.

Recent court cases suggest that DuVernay would have had a strong “fair use” defense for using some excerpts of King speeches. But she apparently decided it wasn’t worth the risk of litigation. As recently as 2013, that risk prevented many media outlets from using anything more than the briefest of snippets in commemorating the 50th anniversary of the March on Washington and the “I have a dream” speech.

The risk is real. When Clarence Jones, who was a personal attorney and speechwriter for King, was told by attorneys from King, Inc., that if he wanted to use the full speech in his book Behind the Dream: The Making of the Speech That Transformed a Nation, he would have to pay $20,000.

“If it wasn’t for me copyrighting that speech, the King children wouldn’t today own their biggest moneymaker,” Jones complained. He said his small publisher feared a lawsuit, so he as the author had to indemnify them from any costs of such a suit. He then dared King family lawyers to sue the man who helped write “I have a dream.” They chose not to.

But there are many other occasions when the legal threats have prevailed. In 1996, the King estate sued CBS for using portions of “I have a dream.” CBS settled the suit by making a donation to the family’s King Center. The family had earlier sued USA Today for reprinting the speech’s text and won another out-of-court settlement and an apology. {snip}

{snip}

But the group that was behind raising $100 million to build the King monument on the National Mall had to drop its name–the Dr. Martin Luther King Jr. Memorial Foundation–in 2013 because King, Inc., demanded it pay a licensing fee. “At one point as the memorial was ready to be dedicated, King, Inc., had all of Dr. King’s books removed from the bookstore on the site of the memorial. The King children wanted to control the bookstore and reap all profits from the selling of merchandise,” Roland Martin, a former CNN commentator who was active in building the memorial, has complained. “All of this despite the foundation paying MLK children through King, Inc., $2.7 million to use the likeness of King and his quotes on the memorial on the National Mall.”

{snip}

Hosea Williams, who in 1968 stood with Dr. King on the motel balcony where he was shot, told the Ottawa Citizen that the profiteering has sullied the King message of humility. “It wasn’t white racists, nor was it the white government that did it; the people who killed King’s dream are those closest to him, and that’s the nightmare,” he said.

{snip}