This time the fuss is about already critically acclaimed (The New York Times critic in residence, AO Scott, called it “a triumph of efficient, emphatic cinematic storytelling”) biopic Selma, starring David Oyelowo as the Rev Dr Martin Luther King, Jr.
The film starts with King’s acceptance of the Nobel Peace Prize in December 1964 and focuses on the three 1965 marches in Alabama that eventually led to the adoption of the Voting Rights Act later that year.
The King estate has not expressly objected to the making of this film. However, back in 2009 the same estate had granted DreamWorks and Warner Bros a licence to reproduce King’s speeches in a film that Steven Spielberg is set to produce but has yet to see the light. Apparently Selma producers attempted in vain to get permission to reproduce King’s speeches in their film. What happened in the end was that the authors of the script had to convey the same meaning of King’s speeches without using the actual words he had employed.
Put it otherwise: Selma is a film about Martin Luther King that does not feature any actual extracts from his historic speeches.
Still in his NYT review, AO Scott wrote that “Dr. King’s heirs did not grant permission for his speeches to be quoted in “Selma,” and while this may be a blow to the film’s authenticity, [the film director] turns it into an advantage, a chance to see and hear him afresh.”
Indeed, the problem of authenticity has been raised by some commentators who have argued that, because of copyright constraints, historical accuracy has been negatively affected.
But is this all copyright’s fault? Is it really true that if you are not granted permission to reproduce a copyright-protected work, you cannot quote from it?
“The social benefit in having a truthful depiction of King’s actual words would be much greater than the copyright owners’ loss.”
Well, probably not. Copyright may have many faults and flaws, but certainly does not prevent one from quoting from a work, provided that use of the quotation can be considered a fair use (to borrow from US copyright language) of, or fair dealing (to borrow from other jurisdictions, e.g. UK) with such work. Let’s consider the approach to quotation in the country of origin, i.e. the United States.
§107 of the US Copyright Act states that the fair use of a work is not an infringement of copyright. As the US Supreme Court stated in the landmark Campbell decision, the fair use doctrine “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity that the law is designed to foster.”
Factors to consider to determine whether a certain use of a work is fair include:
- the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes (the fact that a use is commercial is not per se a bar from a finding of fair use though);
- the nature of the copyright-protected work, e.g. if it is published or unpublished;
- amount and substantiality of the taking; and
- the effect upon the potential market for or value of the copyright-protected work.
There is fairly abundant case law on fair use as applied to biographies. With particular regard to the re-creation of copyright-protected works (as it would have been the case of Selma, should Oyelowo/King had reproduced actual extracts from King’s speeches), it is worth recalling the recent (2014) decision of the US District Court for the Southern District of New York in Arrow Productions v The Weinstein Company.
This case concerned Deep Throat‘s Linda Lovelace biopic, starring Amanda Seyfried. The holders of the rights to the “famous  pornographic film replete with explicit sexual scenes and sophomoric humor” claimed that the 2013 film infringed – among other things – their copyright because three scenes from Deep Throat had been recreated without permission. In particular, the claimants argued that the defendants had reproduced dialogue from these scenes word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting, and reproduced costumes and settings.
The court found in favour of the defendants, holding that unauthorised reproduction of Deep Throat scenes was fair use of this work, also stressing that critical biographical works (as are both Lovelace and Selma) are “entitled to a presumption of fair use”.
In my opinion reproduction of extracts from Martin Luther King’s speeches would not necessarily need a licence. It is true that the fourth fair use factor might weigh against a finding of fair use (this is because the Martin Luther King estate has actually engaged in the practice of licensing use of his speeches). However the social benefit in having a truthful depiction of King’s actual words would be much greater than the copyright owners’ loss. Also, it is not required that all four fair use factors weigh in favour of a finding of fair use, as recent judgments, e.g. Cariou v Prince or Seltzer v Green Day, demonstrate. Additionally, in the context of a film like Selma in which Martin Luther King is played by an actor (not incorporating the filmed speeches actually delivered by King), it is arguable that the use of extracts would be considered highly transformative.
In conclusion, it would seem that in principle that US law would not be against the reproduction of actual extracts from copyright-protected works (speeches) for the sake of creating a new work (a biographic film).
This article originally appeared on The IPKat in a slightly different format on Monday 12 January 2015.
Featured image credit: Dr. Martin Luther King speaking against war in Vietnam, St. Paul Campus, University of Minnesota, by St. Paul Pioneer Press. Minnesota Historical Society. CC-BY-2.0 via Flickr.