A film about Martin Luther King without King's actual words: is it really a copyright problem?

... But can copyright
change history?

A few days ago The Hollywood Reporter featured another interesting copyright story concerning Martin Luther King or - to be more precise - his pretty litigious estate [see The 1709 Blog report here].  

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.

For instance, as still explained by The Hollywood Reporter, during the scene at the funeral of civil rights demonstrator Jimmie Lee Jackson Oyelowo/King gives a rousing oratory, asking the crowd, "Who murdered Jimmie Lee Jackson?". In real life, King asked, "Who killed him?". In another scene, Oyelowo/King rallies protestors with the words, "Give us the vote," while in reality King said, "Give us the ballot." 

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?

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, eg UK) with such work.

... and how far
does copyright have to go?

What is the US approach to quotation?

Let's start with the country of origin of Selma, ie the US. 

§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:

(1) 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];

(2) the nature of the copyright-protected work, eg if it is published or unpublished [in cases involving biographies, the fact that the works reproduced were unpublished has weighed against a finding of fair use: see for instance the well-known Salinger litigation];

(3) amount and substantiality of the taking; and

(4) the effect upon the potential market for or value of the copyright-protected work.

... Not that deep,
said a US court

As is explained in Patry on Fair Use, biographies (or biopics) are a classic form of comment or criticism. 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.

As readers might remember, this case concerned Deep Throat's Linda Lovelace biopic, starring Amanda Seyfried. The holders of the rights to the "famous [1972] 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, including the "most famous scene" in the film, 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 the opinion of this Kat, who is by no means a US copyright expert, 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: (1) the social benefit in having a truthful depiction of King's actual words would be much greater than the copyright owners' loss, and (2) it is not required that all four fair use factors weigh in favour of a finding of fair use, as recent judgments, eg Cariou v Prince [here] or Seltzer v Green Day [here], demonstrate. Additionally, in the context of a film like Selma in which Martin Luther King is played by an actor (it is not that the film incorporates the speeches as actually delivered by King), it is arguable that the use of extracts would be considered highly transformative: Selma would be likely considered as adding "something new [eg a critical appraisal of Martin Luther King and the events occurred in 1965], with a further purpose or different character, altering the first with new expression, meaning, or message." 

In the UK quotes can now be used
just at random provided that their use is fair

What is the EU/UK approach to quotation?

Moving to this other side of the Atlantic, the InfoSoc Directive allows [Article 5(3)(d)] EU Member States to implement into their own copyright laws an exception to the rights of reproduction, communication/making available to the public and distribution, to permit "quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose."

One of the most recent cases at the level of the Court of Justice of the European Union involving an interpretation of Article 5(3)(d) of the InfoSoc Directive was Painer [here]. What is worth recalling here is the rationale of this provision, as Advocate General Trstenjak explained it: "[t]he possible [exception] under Article 5(3)(d) of the [InfoSoc] directive must be seen against the background of the interest in a free intellectual analysis. It thus serves in particular to realise freedom of opinion and freedom of the press. Statements which are themselves protected by copyright may certainly come under the protection afforded by these fundamental rights." [para 186]

There is no need to recall that the way Member States have transposed this provision into their own copyright laws varies, with some Member States, eg the UK, deciding initially not to take full advantage of the scope of this exception. It was only a few months ago that the UK broadened [see here] the exception under s30 of the Copyright Designs and Patents Act 1988 (CDPA), to the effect that quotation is now no longer necessarily confined to criticism or review, although the law still requires the use of the quotation to be "fair dealing with the work". 

Case law under the 'old' s30 CDPA did not elucidate much the scope of the exception, although the ‘criticism or review’ constraints led to odd results in some cases, eg Ashdown v Telegraph in which the Court of Appeal held that publication of the memorandum of the meeting between Ashdown and Blair was not for criticism of "the work" but rather of the political events described/recorded therein, and therefore the defence did not apply.

So, is it all copyright's fault?

Now that s30 CDPA has been freed from the ‘criticism or review’ constraints, the real focus would likely be on whether use of the quotation at hand is fair dealing with the earlier work. In principle this Kat does not see why that the reproduction of short extracts from Martin Luther King's speeches in the context of a film like Selma would not qualify for the new s30 CDPA defence, especially considering the importance of the rights (freedom of expression) that are protected by such exception. 

So?

In conclusion, it would seem that in principle neither US nor EU/UK law would be against the reproduction of actual extracts from copyright-protected works (speeches) for the sake of creating a new work (a biographic film). 

In the present context, factors weighing in favour of the application of available defences from infringement would be: the topicality of King's speech extracts to a film on Martin Luther King; the fact that such speeches were delivered in public; the transformative use of such works in the context of a critical film on his life; the fact that, despite King estate's practice to licence use of his speeches, a film could not possibly compete with or substitute the original speeches [it is not that if you want to know more about Martin Luther King, you watch the film instead of him actually delivering the speeches ... right?]; and, finally, that the film would have likely reproduced only short extracts from the speeches.

But what do readers think?