January 21, 2002
Of Copyrights and Kings
by James L. SwansonJames L. Swanson is a senior fellow in constitutional studies at the Cato Institute, editor in chief of the Cato Supreme Court Review and the author, most recently, of "Lincoln's Assassins: Their Trial and Execution."
Martin Luther King Jr. was not a wealthy man. But he left behind a valuable legacy of intellectual property-books, speeches, manuscripts, sermons, letters and unpublished papers. Copyright law protects that property, and therein lies the origin of a bitter dispute over the ownership of King's writings.
On the eve of the national holiday celebrating King's birthday, his legacy is under attack, not by racists, Klansmen and segregationists, but by scholars, civil rights leaders and the media. And the target of their attack is not King's message but his family—his widow, Corretta Scott King, and their children.
In recent weeks the New York Post indicted the family as King's "ignoble heirs;" the New York Times accused them of "misplaced values," calling their behavior "distressing" and "heartbreaking;" the Houston Chronicle smeared them as "grasping, greedy, tacky...and, worst of all, unworthy" of their slain patriarch. The attacks climaxed with a CBS "60 Minutes" broadcast in which William Rutherford, a former executive director of the Southern Christian Leadership Conference, feared that King "must be spinning in his grave." Reporter Leslie Stahl joined the chorus, mourning that "the family has even been accused of killing the dream."
Killing the dream? What monstrous thing has the King family done to provoke such vicious criticism? It turns out that they're under siege because they've chosen to protect what is rightly theirs-the property they inherited from King after he was assassinated in 1968. Under the Copyright Act, a federal law authorized by Article I, section 8, of the Constitution, the rights to King's writings belong to his heirs.
Like most intellectual property owners, the Kings protect and license their rights. Several years ago, in a deal that excited widespread attention, they licensed Time Warner to release a large quantity of King's writings-many hitherto unpublished-in books and electronic media. The Kings also allow non-profit and educational institutions to enjoy certain non-commercial uses royalty-free, and they make King's works available for a fee to the media and other for-profit entities. They've licensed his voice and image for at least two television commercials.
Like millions of other Americans, when their rights have been infringed, they've filed lawsuits. Thus, they sued USA Today for publishing, without permission, the entire text of King's most famous work—the August 28, 1963, "I have a dream" speech he delivered at the Lincoln Memorial. They sued CBS when the network sold videotapes containing nine minutes of that speech. And they raised questions when a group with no connection to the family proposed using King's name to raise tens of millions of dollars to erect a huge monument on the Mall in Washington D.C.
The family's critics, all of whom have an interest in exploiting King's work cost-free, are outraged. Brent Staples wrote recently in the New York Times that the family is trying to "corner the market" on King's words, placing "profits above the national good." "His words, his voice and his story," Staples intoned, "belong to history." The Houston Chronicle insisted that King's life (and presumably his copyrights) "belongs to all of us." Sweeping aside more than two centuries of property law, the Chronicle argued that "the standard that ought to apply here has little to do with what is legally permissible...it has to do with what is right." Indignant that the audacious Kings charge fees to reprint King's words in books, historian David Garrow (who has profited handsomely from writing about King and the civil rights movement) pleaded recently that "history should not be put up for sale."
The Kings are guilty, say the critics, of three things: by enforcing their property rights they limit the dissemination of King's writings and thereby censor history; by earning profits they dishonor their patriarch, who never cared about intellectual property rights; and by licensing television commercials, they display poor taste. Those charges, in order, are illogical, false and irrelevant.
First, the family has no interest in suppressing King's works, much less in censoring history. On the contrary, as their publishing deals with Time Warner and others demonstrate, they want his works to reach the widest possible market. Ideas, facts and information about King are not the subject of the copyrights; they're available to all. Thus, the Kings can't prohibit authors from writing books and articles about him; professors from teaching courses about him; editors from publishing photographs of him; or producers from making films about him. What they can control are his actual words, which they are doing, but not in any way that suggests they're censoring history.
Second, it is false to claim that King did not care about copyright. Unlike Tolstoy, whose scruples against private property led him to throw his works into the public domain, King copyrighted his books. In fact, when he was alive he sued a record company for releasing an unauthorized album of the "I have a dream" speech. That hardly suggests that he meant his family to be bereft of the financial benefits that his works might afford them after his death.
Finally, the question of whether licensing television commercials is tasteful is entirely subjective and irrelevant. Even if it did evidence poor taste, the property still belongs to the family.
This dispute over King's works is not without its larger implications, of course. Were they to carry the day, the critics would threaten the very foundation on which the law of intellectual property—indeed all property—rests. They advocate a de facto appropriation of King's writings in the name of the "public interest." That logic leads inevitably to the socialization of copyright, with authors subject to the tyranny of the majority. Such a regime would effectively destroy any expectation of copyright protection in the work of a public figure. Perversely, the more important a work, the less copyright protection it would deserve.
That the critics are waging their campaign in the name of the First Amendment only compounds their error. In so doing so they trivialize the First Amendment, transforming it into a burglar's tool wielded by the media. Their theory amounts to opportunism in the name of the "public interest," "newsworthiness" or the "right to know." All property derives its value from the power to exclude others. The right to free speech does not include the right to take the speech of others for free. Reasonable people may disagree about the scope of copyright protection. But no one can deny that under current law King's property is protected.
Ignoring property rights, a cornerstone of the liberty Martin Luther King, Jr. fought to secure, is an inauspicious way to celebrate his birthday. His dreams may belong to the world, but his intellectual property belongs to his family.
This article was first published in The Los Angeles Times, January 20, 2002.