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A settlement between CBS News and the family of Dr. Martin Luther King Jr. could be considered a cross-licensing agreement. But it leaves unresolved the issue of whether a speech made to millions of people and broadcast on national television is subject to copyright. “That’s a fairly typical way for parties to resolve disputes involving intellectual property,” says Anthony B. “Tony” Askew, a partner in the intellectual property firm of Jones & Askew. The “cross-licensing” will allow both parties to continue to use the speech, Askew notes. The network and the King estate said Wednesday they reached a settlement in their dispute over the rights to King’s “I Have a Dream” speech. The King estate had filed a copyright infringement suit against CBS in 1996 because the network did not get permission before marketing a video documentary of the civil rights movement, which included nine minutes — 62 percent — of King’s famous 1963 address to the crowd that gathered at the Washington Monument after the “March on Washington.” CBS News will retain the right to use footage from the march, including the famous speech. CBS also will have the right to license its footage to others but must provide contact information regarding the King estate’s claimed intellectual property rights. That would seem to leave open the possibility of the King estate bringing copyright infringement litigation against others who use the speech without their permission. CBS News agreed to make a contribution to The Martin Luther King Jr. Center for Nonviolent Social Change and to provide footage to the King estate for producing works about King. CBS would not reveal the amount of the contribution or how legal fees would be handled. The Kings’ suit was dismissed in 1998 by U.S. District Judge William C. O’Kelley. O’Kelley ruled that the speech “almost epitomizes the definition of general publication: it was made available to members of the public at large without regard to who they were or what they proposed to do with it.” The term general publication describes intellectual property that has forfeited a copyright. King v. CBS, No. 1:96-cv-3052 (N.D. Ga. July 22, 1998). A year later, however, a panel of the 11th U.S. Circuit Court of Appeals revived the case in a 2-1 decision. Chief Judge R. Lanier Anderson II wrote that “a performance, no matter how broad the audience, is not a publication” and that CBS had not yet proven King relinquished his copyright in other ways. The panel heard oral arguments in the case last May. There, CBS argued King forfeited his copyright, evidenced by the speech being printed in its entirety in a newsletter. The newsletter was published by the Southern Christian Leadership Conference (SCLC) less than a month after the speech was delivered and did not include a copyright symbol. Therefore, King forfeited his rights to copyright, CBS argued. Kings argued that Dr. King, then president of the SCLC, vigorously protected previous speeches and began copyrighting them five years before the speech was delivered. Given this, King would not have approved the newsletter had he known about it, lawyers argued. CBS also argued that use of its own film footage of the speech constituted fair use of copyrighted material for news reporting, regardless of the fact that CBS later used the footage for a commercial video. The commercial aspect, according to the King family, took the footage out of the fair use realm. Kilpatrick Stockton partner Joseph M. Beck represented the King family. Floyd Abrams of New York’s Cahill, Gordon & Reindell was lead lawyer for CBS. The 11th Circuit reversed summary judgment, but remanded to the District Court to settle factual issues and left open the defense of forfeiture for CBS to pursue. Basically, the parties were back at square one. The most significant issue on appeal was whether broadcast of the speech resulted in the loss of common law copyright before King obtained statutory copyright, says L. Ray Patterson, a professor at the University of Georgia School of Law. Patterson says he expected the District Court to side with the King family and upholds its claim of a copyright on the speech. The 1909 Copyright Act — the governing statute in effect when the copyright on the speech was registered — provided an author could get a copyright on certain unpublished works. Under the statute, a person could obtain a copyright on a lecture by publication with notice. An author could obtain statutory copyright for those works even if they were not published. Those works were defined as works that were not reproduced for sale. Lectures were included in this category. “I think the statute could probably be interpreted to mean until the work was distributed in copies it remained unpublished by common law copyright,” Patterson says. CBS’ fair use argument was a weaker point for the network, says Patterson. CBS clearly made commercial use of the speech, and fair use is directed really to the right of the individual in the use of works without infringing copyright. By including 62 percent of the speech in the video, CBS used too much of the work for its use to be characterized as fair use, Patterson says. “What the settlement amounts to is that CBS has purchased a license to the [speech] from the King Center with their contribution, and the King Center has a royalty-free license to use [CBS'] particular version,” says Patterson.

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