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Selma, a new film about Martin Luther King’s role in seminal 1965 civil rights marches, is a triumph not only because of critical acclaim, but because biopics about King have been nearly impossible to produce in the first place. That’s because the King family aggressively enforces copyright at all turns, unleashing lawyers in the direction of anyone who seeks to use the civil rights icon’s speeches or images without permission.
Happily, film-maker Ava DuVernay performed a historical hack of sorts, recreating King’s signature powers of oration, but without using his actual words. Critics so far seem impressed, and Selma has already created considerable controversy and Oscar buzz.
But this still raises the question of why the King estate wouldn’t allow the filmmakers to use King’s famous speeches, including “I Have a Dream,” in the first place. Likewise, the estate has been quick to go after merchandise makers who used King to celebrate the historical election of Barack Obama, as well as the foundation that helped to bring a statue of King to the Washington Mall.
Could it be that the estate fears too much exposure will trivialize King’s accomplishments? Unlikely. After all, the estate hasn’t been shy about giving a piece of King to the likes of Apple, Chevrolet and Mercedes — and more recently to a t-shirt outfit that pledged to “celebrate Dr. King’s life and legacy through artistic, fashion-forward designs.”
Unsurprisingly, the root issue here is entirely about money, and the King estate wants as much as it can get. It doesn’t appear to care that its grasping tactics put King’s words beyond the reach of, well, civil rights leaders.
As lawyer Jonathan Band noted, these episodes are not just unseemly, but risk creating a distorted historical record since many people’s impression of King could become shaped not by what he actually said, but by filmmakers’ recreations of what he sort of said.
Band also pointed out, correctly, that there is a very strong fair use argument for historians and film makers to use King’s speeches without clearing copyright. But having the best legal case (not to mention the best moral one) is not enough — they would also require the financial resources to make their case in court.
Ultimately, though, the fuss over the King speeches obscures a deeper problem: copyright protection lasts for far, far too long.
After all, the Selma speeches occurred 50 years ago and, under a rational intellectual property regime, should be entering the public domain. This is something for Congress to consider in 2015 as it continues to review U.S. copyright policy; rather than simply focusing on enforcement, it should also restore a balance between protecting artists and protecting free expression.
This story was corrected to state the King statue in Washington has been erected; an earlier version said the foundation was working to erect it.