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Selma and the Intellectual Property involving Dr. King’s famed speeches.

Best Picture Oscar Nominee, Selma is a a cinematic portrayal of Dr. Martin Luther King, Jr.’s legendary march from Selma to Montgomery, Alabama in support of the Voter Right’s Act of 1965. Despite the film’s many accolades, history buffs have been quick to raise criticism for its technically inaccurate portrayals of King’s famous speeches. In an effort to avoid violating the copyrights held by King’s estate – which have been reportedly licensed to DreamWorks and Warner Bros. for use in an upcoming film – director Ava DuVernay chose instead to paraphrase Dr. King’s works. The commentary surrounding this decision has run the gamut from enthusiastically supporting the King estate’s exercise of its rights, to decrying the copyright system for failing to make such socially important content available for free dissemination. It is easy to be swept up by the emotion displayed on both sides of the spectrum, especially when King’s work has had such a profound effect in shaping the social and political climate we face today. Still, it is important to put the copyrights at issue into perspective.

Frustrating though it may be to lack unfettered access to King’s speeches, the court of public opinion is not be the body that determines which art and which technology should be protected by the law. Indeed, the copyright and patent laws that govern such things have been put in place precisely in order to ensure that the often artful and intangible objects of our creation are indiscriminately provided with some manner of protection in the same way that our personal property is.

The issue here is not resolved by arguing that King’s speeches are so important that performing them verbatim should fall within the realm of allowable, license-free “fair use.” Indeed, had DuVernay proposed using King’s speeches for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, using the his words without a license would arguably be allowable. Instead, DuVernay would have used the work to draw a profit for herself and her associates through a wildly successful feature film. And it is precisely this unlicensed commercialization of his copyrighted works that King’s estate has consistently fought against with support from the courts.