M. L. King and intellectual property law
Martin King was a master orator. His speeches still have the power to move us today. And in the tradition of preaching (including among those outside the African-American tradition), King borrowed some of his material from others, putting it together in new ways.
King used his oratory to construct common ground, drawing on references to political and religious morality that spoke to both blacks and whites. But the rules of preaching are in profound conflict with the rules governing intellectual property. King himself copyrighted the I Have a Dream speech in 1963. He directed all proceeds to the Civil Rights movement. But since his death, his estate, first his widow and now his children, have struggled with how to apply the law to King’s legacy.
Here is a transcript of interesting report from NPR/WNYC’s On the Media. You can also listen to the audio (13 minutes) and I recommend that you do.
Here is the blurb for the show:
Martin Luther King Jr.’s sermons frequently relied on improvisation – King drew on sources and references that were limited only by his imagination and memory. It’s a gift on full display in King’s ‘I Have A Dream’ speech, but it also conflicts with the intellectual property laws that have been strenuously used by his estate since his death. OTM producer Jamie York speaks with Drew Hansen, Keith Miller, Michael Eric Dyson and Lewis Hyde about King, imagination and the consequences of limiting access to art and ideas.
BROOKE GLADSTONE: Late in the afternoon of August 28th 1963 a young preacher stepped to the podium on the steps of the Lincoln Memorial and looked out over the assembled crowd. Then, Martin Luther King, Jr. did what many preachers do, but never so memorably. Using a blueprint he’d prepared in advance, he built a sermon.
[CROWD HUBBUB/DR. KING SPEAKING] The circumstances were exceptional, 250,000 people, a time tactically chosen, a show of strength and purpose, an implicit threat. But for King, it came down to a moment and a process he’d spent a lifetime learning. On the Media’s Jamie York anatomizes the process that made the moment.
JAMIE YORK: Working for his notes, King started moving quickly through themes and invocations he’d used many times before, starting with the Emancipation Proclamation and the Gettysburg Address, a reference to the Gospel of Matthew and, by the fourth paragraph, the idea of the uncashed check. This was an idea invoked most recently by James Baldwin and Malcolm X, the check uncashed, a debt still owed.
DR. MARTIN LUTHER KING, JR.: In a sense we’ve come to our nation’s capitol to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note …
[SPEECH UP AND UNDER]
JAMIE YORK: Then King moved on, deploying the full range of his voice through a series of references to Gandhi’s soul power, back to the Bible, repeating key phrases and pausing to hear the crowd’s response, so he could react accordingly. In those pauses, he came to grips with the conclusion he’d outlined in his notes, and around minute 11 he decided to improvise.
DREW D. HANSEN: He’s able to sit there, listen to what the crowd is saying and realize that his conclusion is terrible. I mean, it’s not gonna work.
JAMIE YORK: Drew D. Hansen is author of an analysis of the speech entitled The Dream.
DREW D. HANSEN: And so right there he’s looking out at the crowd. Mahalia Jackson’s behind him, saying, tell them about the dream, Martin, tell them about the dream, Martin.
[DR. KING SPEAKING/UP AND UNDER] And he just – he looks up from his text and says, “And so, I say to you today, my brothers, that even though we must face the difficulties of today and tomorrow –
DR. MARTIN LUTHER KING, JR.: I still have a dream!
DREW D. HANSEN: – I still have a dream.
DR. MARTIN LUTHER KING, JR.: It is a dream deeply rooted in the American dream.
DREW D. HANSEN: And Clarence Jones who’s one of his aides, one of his speechwriters, is looking at him and he’s following along with the text, and he looks up at that point and goes, he’s off now. He’s on his own now. And he just flies.
DR. MARTIN LUTHER KING, JR.: – that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today!
JAMIE YORK: On the one hand, King had acted on a spark of inspiration and, on the other, was employing a skill he’d practiced and honed.
[DR. KING SPEAKING] What many scholars believe King did in that moment was to abandon his written remarks and draw on one of hundreds of ideas, references and sources that he’d committed to memory. In this case, an idea he’d been workshopping in front of audiences, the idea of a dream, a prophecy, joined with a riff on the song, America, My Country ‘Tis of Thee, with lyrics Samuel F. Smith wrote in 1831.
DR. MARTIN LUTHER KING, JR.: This will be the day when all of God’s children –
MAN IN CROWD: Yes.
WOMAN IN CROWD: Yes!
DR. MARTIN LUTHER KING, JR.: – will be able to sing with new meaning – My country ‘tis of thee.
DR. MARTIN LUTHER KING, JR.: Sweet land of liberty, of thee I sing!
[RESPONSE FROM WOMAN]
DR. MARTIN LUTHER KING, JR.: Land where my fathers died, land of the pilgrim’s pride.
[DR. KING SPEAKING/UP AND UNDER]
JAMIE YORK: There was a tradition of referencing the song’s irony in the face of racism. Ida B. Wells and W.E.B. DuBois had both done it. But King wasn’t going that far back. King was recalling a speech black judge and clergyman Archibald Carey had given 11 years prior at the Republican National Convention, another memorable riff on America by Samuel F Smith.
DREW D. HANSEN: There’s no question, you look at the two together, King’s depending on that as his source. I mean, in some speech, King talks about how he gets this line from quote, “a great orator,” close quote. I mean, he doesn’t try to hide it. But then you look at what King does, and the material’s totally different. I mean, Carey talks about the green mountains and white mountains of Vermont and New Hampshire. Well, that’s a handful of words, if you ever saw one. King makes it “the prodigious hilltops of New Hampshire” right? He gets the internal rhyme on the short “i” of prodigious and hilltops. It’s this nice, quick little phrase. I mean, there’s no repeated phrase in Carey’s original. Well, King takes it and he puts in “Let freedom ring” –
DR. MARTIN LUTHER KING, JR.: Let freedom ring!
MAN: – “from the prodigious hilltops of New Hampshire.”
DR. MARTIN LUTHER KING, JR.: From the prodigious hilltops of New Hampshire!
DR. MARTIN LUTHER KING, JR.: Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.
[RESPONSES FROM CROWD] Let freedom ring from the snowcapped Rockies of Colorado!
[SPEECH CONTINUES IN BACKGROUND]
DREW D. HANSEN: He’d spent his entire life studying techniques of preaching. And for the rest of his life, I mean, he and his friends from seminary kept on this running correspondence about the preacher’s art. I mean, one of them would write to him and say, hey, I tried the ladder sermon, where you take an idea and you gradually increase the level of your examination at it, or the jewel sermon, where you look at a theme from a number of different angles, like facets of a jewel. Rabbit in the bushes, where if you start going on an idea and you feel the audience responding, then you keep shootin’ at it, just like a hunter would keep shooting at the bushes –
DR. MARTIN LUTHER KING, JR.: – free at last, free at last.
DREW D. HANSEN: – when he sees them rustle to see if there’s a rabbit in there.
DR. MARTIN LUTHER KING, JR.: Thank God almighty, we are free at last!
[LOUD CHEERS AND APPLAUSE]
JAMIE YORK: But what are the ethics of constructing your sermons from the raw material of any ideas you encounter? Keith Miller is the author of Voice of Deliverance: The Language of Martin Luther King Jr., and Its Sources.
KEITH MILLER: There were hundreds of books and sermons published by liberal Protestants before 1950, 1960, and in my research I traced not only King’s use of sources, but these, these preachers were borrowing from each other. So you can read one book of sermons and there’s a quotation from Shakespeare, and you – and you might think that the person was staying up all night reading Shakespeare, but actually the same quotation from Shakespeare shows up in book after book after book of sermons by different people.
JAMIE YORK: And that’s just the references found in the published sermons of white and black preachers. King, of course, came out of a parallel oral tradition of African-American preaching.
KEITH MILLER: There’s a long tradition of African-American folk preaching starting in slavery. Most slaves were forbidden by law to learn how to read and write, so they developed this oral tradition of songs and sermons. And the sermons – some of the sermons during slavery were still being preached in the ’30s, ’40s and ’50s and were recorded on blues labels and sold. Somebody would find an unusual piece of scripture that people hadn’t used much before and then they’d float from one book of sermons to another and one imagines from one oral sermon to another in different contexts.
DREW D. HANSEN: King saw the whole world as his sourcebook. He didn’t make some great fine distinctions between what was his originally and what was someone else’s. He would take the material and he would transform it into his own, no matter where it came from.
JAMIE YORK: Preaching then is an art, whose first and foremost aim is to exalt God and move those in the pews. King used his oratory to construct common ground, drawing on references to political and religious morality that spoke to both blacks and whites. But the rules of preaching are in profound conflict with the rules governing intellectual property. King himself copyrighted the I Have a Dream speech in 1963. He directed all proceeds to the Civil Rights movement. But since his death, his estate, first his widow and now his children, have struggled with how to apply the law to King’s legacy. Lewis Hyde is the author of Common as Air: Revolution, Art and Ownership. He says it’s a real puzzle deciding how to treat Martin Luther King, Junior’s famous speech.
LEWIS HYDE: Whether it should be a public – like a public park open to all of us or whether it’s a piece of private real estate that it’s appropriate to charge fees to enter. I guess I first knew about this because it came up in regard to the famous Civil Rights documentary Eyes on the Prize, and in that instance, you find one case in which people wanted to use Martin Luther King’s speaking and image and found it difficult to clear the rights for a reasonable amount of money.
JAMIE YORK: Eyes on the Prize is but one example of King’s estate monetizing and restricting access to King’s written words, speeches and likeness. Likewise, the estate has sued or demanded steep fees from academics, journalists and news organizations, charging intellectual property violations and, almost without exception, they’ve won.
LEWIS HYDE: Martin Luther King’s heirs have treated his created work as a commercial property. They have used King’s work, sold it to advertisers. One example is a cellphone company.
[EXCERPT FROM SPEECH: FREE AT LAST!] [MUSIC UP AND UNDER]
JAMIE YORK: A cellphone ad from 2000 in which King’s speech is juxtaposed with Kermit the Frog –
HOMER SIMPSON: DOH!
JAMIE YORK: – and Homer Simpson.
LEWIS HYDE: And [LAUGHS] so this is a reformulation of King’s image and message, moving it from the political and spiritual sphere in which it began into a completely commercial sphere.
MALE ANNOUNCER: Before you can inspire.
DR. MARTIN LUTHER KING, JR.: We hold these truths to be self-evident –
MALE ANNOUNCER: Before you can touch.
DR. MARTIN LUTHER KING, JR.: – that all men are created equal.
MALE ANNOUNCER: You must first connect. And the company that connects more of the world is Alcatel, a leader in communication networks.
DR. MARTIN LUTHER KING, JR.: I have a dream!
JAMIE YORK: Hyde makes the point that the snippet of that speech that was sold to Alcatel is only 65 percent King’s. The rest of the words are Thomas Jefferson’s. No one I spoke to disputes that the King family have every legal right to make a living from the estate they’ve inherited, and where the line of commercialism should be drawn is a complicated debate. A 2008 study found that the speech was more recognizable to Americans than any other, and 97 percent of American teenagers recognized the words as King’s. But authors like Michael Eric Dyson, author of I May Not Get There With You: The True Martin Luther King, Jr., fear that the recognition is actually counterproductive if documentarians, journalists and researchers are denied reasonable access to the rest of King’s legacy.
MICHAEL ERIC DYSON: As a scholar and as interested citizens, certainly I think that it would serve Dr. King’s ultimate interests for the broader public to have access to his intellectual vision, and I think that’s critical if we’re going to combat some of the vicious mythologies about Dr. King that prevail.
JAMIE YORK: Lewis Hyde thinks the risks are greater still, that King’s speeches, the tradition he comes out of makes an even larger point about how ideas and ownership enable or disable certain ways of being human.
LEWIS HYDE: And in particular, I’m interested in collective being. I’m interested in making it easier for people to be public and social selves, as Martin Luther King certainly was. The risk is that if we turn everything into private property, it becomes harder and harder for us to have these common or collective selves, which is something we need. In anthropology, there’s an interesting resurrection of an old word, which is the word “dividual.” So we live in a nation that values individuality; we live in a nation of individuals. But a dividual person is somebody who’s imagined to contain within himself or herself the community that he or she lives in. So it would be nice if we began to have a better sense of how to own and circulate art and ideas, such that we could be present in our dividuality, as well as our individuality.
JAMIE YORK: King was a genius as an activist, poet and preacher who, to [LAUGHS] borrow a phrase, made hope and history rhyme. But for Hyde, genius like King’s can only be fully realized when it has access to the world of art and ideas that King swam in and sampled from. This is our public selves, where our unique gifts contribute not simply to our individuality, but to better our community. And for Hyde, this potential is lost when we confuse categories and place ideas like King’s, ideas he himself thought were divinely inspired, solely into the category of commerce.