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A few days ago The Hollywood Reporter featured another interesting story concerning Martin Luther King or – to be more precise – his pretty litigious estate.

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?

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:

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, e.g. if it is published or unpublished;
3. amount and substantiality of the taking; and
4. 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 [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 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.

The post Selma and re-writing history: Is it a copyright problem? appeared first on OUPblog.

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I believe this Martin Luther King Jr. quote is as true for the inside of ourselves as it is for the outside to others. We must drive out the darkness within our minds, and love ourselves. Thank you Dr. King for so many inspiring words and faith.

This past weekend was a whirl wind of a time! We did so much, that by Sunday I was tired enough to sleep through Norah waking up from her nap. Who knows how long she was in her crib playing before she finally started to let me know she wasn't happy there. I find these are the times I learn the most about myself, because they are also when I'm my weakest, most vulnerable, and busiest. Do you ever have weekends like that?

It's a new week though, with new thoughts, new perspectives, and new schedules! I have discovered that every week is different with my schedule, time to  E • M • B • R • A • C • E  it! 



I tried something new this morning, I tried some meditative prayer. Like most women, my mind is always moving. Surprisingly it stayed pretty clear, and I think I caught myself drifting to sleep a couple of times (sitting up in the studio). Since then I've been very calm, and I knew I needed to get it down on paper, so I began this drawing. I look forward to working on her throughout the week during these times of peace every morning.

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After that first nap I give Norah all of my attention. We played around and got to ride on the dragon in the studio. It's so special to have her in the studio with me, even if I'm not working. I remember spending many days and nights in my dad's studio, and I wish the same for her.


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I struggled with my daily sketches these last few days. To find the joy and the motivation to draw when so drained is like pulling teeth for me. I feel like Tinkerbell, only able to handle one emotion at a time, except it's more than just emotions, but actions too. I did it, and I'm proud of myself for getting them done. It's okay to not be elaborate, or detailed, or whatever else I think I HAVE to be. Sometimes, just a simple sketch is all there needs to be.

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Amy Goodman from Democracy Now interviews Brian DeShazor the director of the Pacifica Radio Archives. He talks about finding a lost speech of Dr. Martin Luther King Jr.

So, this recording, this archive is an American treasure, and every citizen in America, I hope, understands that this collection, we want to be able to make it accessible to you, the public. We want it to be in the classrooms. We want it to be in high schools. We want universities to have this for their scholarly research and their scholarly endeavors. And that will make history change. It will be able to have us, the political left, if you will, the progressive left, the record of the activism available for history in the future. And if we don’t preserve this deteriorating, fragile tape, then that history will be lost, and we’ll lose the connection with our elders, like Dr. King. This very speech, this may have the quote that inspires somebody to take the next step in our fight for racial equality and justice in America.

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This educational comic from 1957 is credited with inspiring many to take on non violent protest as a means to achieving civil rights for all. Most famously, a young John Lewis read it and was inspired to march, a story told this week in March Part 2 by Lewis, Nate Powell and Alfred Aydin.

The comic, published by the Fellowship for Reconciliation, was written by pacifist Alfred Hassler and drawn by an unnamed artist in the Al Capp studio; it’s been translated other language and in 2011 used as a tool in Egyptian protests.

Its message is still strong.

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In celebration of MLK Day today, we wanted to share two perspectives from Lee & Low staff members on why you should see Selma, the new movie based on the life of Martin Luther King, Jr. Much has been said about the lack of Academy Award nominations for the movie, but nevertheless moviegoers are uniformly in agreement that Selma is one of the best movies of the year. It offers a meaningful historical context for current events and a springboard for deep discussion, making it a valuable learning experience as well as a straight-up great movie.

Here’s why we think seeing Selma is one of the best ways you could spend MLK Day:

Jason Low, Publisher: The director of Selma, Ava DuVernay brings the audience a lean, gritty fight for voter rights during the civil rights movement. The depiction of Martin Luther King, Jr. is especially poignant. The name Martin Luther King, Jr. is a household name and a holiday. His name is the stuff of legend. But what many fail to realize is that Martin Luther King, Jr. was a man with faults and insecurities just like everyone else. The film does not shy away from King’s marital problems caused by his infidelities or self-doubt and indecision resulting from the battle fatigue and weight of leadership when so much is on the line. DuVernay’s King is so human that we fear for his life even during the quieter scenes because humans are vulnerable and these were dangerous times.

Conversations between President Lyndon B. Johnson and Martin Luther King, Jr. are riveting. The political needle was just as difficult to move in 1965 as it is today. The Voter Rights Bill was as messy an issue as any US president would have to face. The bill was steeped in violence and racism and Johnson’s instinct to postpone action was derailed when John Lewis and Reverend Hosea Williams tried to lead a march of six hundred protestors over the Edmund Pettus Bridge. The nonviolent protestors were savagely beaten by state police and news cameras captured a brutal, bloody war for all Americans to see.

I brought my family to see this film. Bearing witness to the bravery it takes to protest nonviolently for equal rights was (to me) the chance to see history at its most heroic. Although fifty years has passed since Selma took place, the film feels eerily current. Protests over police killings of unarmed black males are happening all over the country and continue to be front-page news. Watching a film like Selma is difficult, but all the more reason to see it. Great movies will move you, make you feel something and Selma does all of these things very deeply.

Rebecca Garcia, Marketing and Publicity Assistant: During Common’s acceptance speech for the Golden Globe for Best Original Song, he said, “Selma is now.” Even though the Selma to Montgomery Marches were fifty years ago, this film reminded me that the Civil Rights Movement was a hard battle and took a long time to take effect.

David Oyelowo does an excellent job as Dr. Martin Luther King, Jr. Dr. King in this movie struggles with self-doubt, isn’t the perfect husband, and even makes decisions that have other leaders in the Civil Rights Movement question his leadership skills. But this is the Dr. King we all need to see. He’s human and flawed, but is still inspiring and courageous.

While watching the movie, I was reminded of the many protests happening around the country in the wake of the Ferguson and Staten Island grand jury decisions. Change doesn’t happen overnight. Change is an arduous and bitterly long process. Selma serves as a reminder of what has been accomplished and what we still need to accomplish. Selma doesn’t hold back when it comes to the violence faced by protesters.

Ava DuVernay presents us with a flawed, realistic and ultimately human Dr. King. While David Oyelowo does amazing justice to Dr. King, I felt that the talented actresses in the movie (Carmen Ejobo, Oprah Winfrey, and Lorraine Toussaint to name a few) weren’t utilized to their full potential. Even so, Selma is a relevant and timely film that everyone should see. Take tissues with you.

Additional Resources:

John Lewis in the Lead: A Story of the Civil Rights Movement

Free tickets to see Selma for 7th, 8th, and 9th grade students

Essay about challenges to the historical accuracy of Selma

Did you see Selma? What did you think?

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The strides that Dr. Martin Luther King, Jr. made during the Civil Rights Movement continues to be remembered and honored today, but did you know it actually took 15 years for Martin Luther King, Jr. Day to be created?

In 1968, Congressman John Conyers introduced legislation to make a national holiday in honor of Dr. King, four days after he was assassinated. The bill was initially stalled, but luckily, Conyers and Representative Shirley Chisholm were persistent and they resubmitted the legislation during each legislative session. This, along with mounting pressure during the civil rights marches in Washington DC in 1982 and 1983, got the bill passed. On November 3, 1983, President Ronald Reagan signed the bill, establishing the third Monday of every January as Martin Luther King, Jr. National Holiday, beginning in 1986. The first national Martin Luther King, Jr. Day was observed on January 20, 1986.

So today, we honor Dr. King and his message of compassion and equality for all. Happy Martin Luther King, Jr. Day!

Filed under: Holidays Tagged: Civil Rights, Jr., Martin Luther King, MLK, national holidays

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Last week I traveled to Washington, DC for a family vacation.  While we were there we visited the Washington DC Martin Luther King National Memorial, which opened since our last trip to DC. … Read More →

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Last week I traveled to Washington, DC for a family vacation.  While we were there we visited the Washington DC Martin Luther King National Memorial, which opened since our last trip to DC. … Read More →

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By Margot Minardi The new Martin Luther King, Jr. National Memorial in Washington, DC, attracted criticism from an unlikely corner recently when poet Maya Angelou complained that one of the inscriptions made the civil rights leader seem like an “arrogant twit.” In a sermon on “The Drum Major Instinct,” delivered two months before

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Since Monday is Martin Luther King Jr. Day I thought it would be nice to highlight another important civil rights leader, A. Leon Higginbotham Jr. This excerpt comes from The Oxford African American Studies Center. It was written by Edward L. Jr. Lach and published in the African American National Biography.  In celebration of next week’s Inauguration and in commemoration of Black History Month in February, the Oxford African American Studies Center is available to the public for free until March 1st.  Visit here for instructions on how to login or use username:barackobama, password:president.

A. Leon Higginbotham Jr., jurist and civil rights leader, was born Aloysius Leon Higginbotham in Trenton, New Jersey, the son of Aloysius Leon Higginbotham Sr. , a laborer, and Emma Lee Douglass , a domestic worker. While he was attending a racially segregated elementary school, his mother insisted that he receive tutoring in Latin, a required subject denied to black students; he then became the first African American to enroll at Trenton’s Central High School. Initially interested in engineering, he enrolled at Purdue University only to leave in disgust after the school’s president denied his request to move on-campus with his fellow African American students. He completed his undergraduate education at Antioch College in Yellow Springs, Ohio, where he received a BA in Sociology in 1949 . In August 1948 he married Jeanne L. Foster ; the couple had three children. Angered by his experiences at Purdue and inspired by the example of Supreme Court Justice Thurgood Marshall , Higginbotham decided to pursue a legal career. He attended law school at Yale and graduated with an LLB in 1952 .

Although Higginbotham was an honors student at Yale, he encountered racial prejudice when he tried to find employment at leading Philadelphia, law firms. After switching his sights to the public sector, he began his career as a clerk for the Court of Common Pleas judge Curtis Bok in 1952 . Higginbotham then served for a year as an assistant district attorney under the future Philadelphia mayor and fellow Yale graduate Richardson Dilworth . In 1954 he became a principal in the new African American law firm of Norris, Green, Harris, and Higginbotham and remained with the firm until 1962 . During the same period he became active in the civil rights movement, serving as president of the local chapter of the National Association for the Advancement of Colored People (NAACP); he was also a member of the Pennsylvania Human Relations Commission.

Between 1960 and 1962 Higginbotham served as a special hearing officer for conscientious objectors for the United States Department of Justice. In 1962 President John F. Kennedy appointed him to the Federal Trade Commission, making him the first African American member of a federal administrative agency. Two years later President Lyndon Johnson appointed him as U.S. District Court judge for the Eastern District of Pennsylvania; at age thirty-six, he was the youngest person to be so named in thirty years. In 1977 President Jimmy Carter appointed him to the U.S. Federal Court of Appeals for the Third Circuit in Philadelphia. He became chief judge in 1989 and remained in the position until his retirement in 1993 .

As a member of the federal bench, Higginbotham authored more than 650 opinions. A staunch liberal and tireless defender of programs such as affirmative action, he became equally well known for his legal scholarship, with more than one hundred published articles to his credit. He also published two (out of a planned series of four) highly regarded books that outlined the American struggle toward racial justice and equality through the lens of the legal profession: In the Matter of Color: Race and the American Legal Process, the Colonial Period ( 1978 ), in which he castigated the founding fathers for their hypocrisy in racial matters, and Shades of Freedom: Racial Politics and Presumptions of the American Legal Process ( 1996 ).

Higginbotham also taught both law and sociology at a number of schools, including the University of Michigan, Yale, Stanford, and New York University. He enjoyed a long relationship with the University of Pennsylvania, where he was considered for the position of president in 1980 before deciding to remain on the bench. Following his retirement in 1993 , Higginbotham taught at Harvard Law School and also served as public service professor of jurisprudence at Harvard’s John F. Kennedy School of Government. In addition, he served on several corporate boards and worked for the law firm of Paul, Weiss, Rifkind, Wharton, and Garrison in both New York and Washington.

Although most of his career was spent outside the public limelight, Higginbotham came to the forefront of public attention in 1991 when he published an open letter to the Supreme Court nominee Clarence Thomas in the University of Pennsylvania Law Review. Castigating Thomas for what he viewed as a betrayal of all that he, Higginbotham, had worked for, Higginbotham stated, “I could not find one shred of evidence suggesting an insightful understanding on your part of how the evolutionary movement of the Constitution and the work of civil rights organizations have benefited you.” Although widely criticized for his stance, Higginbotham remained a critic of Thomas’s after he joined the Supreme Court and later attempted to have a speaking invitation to Thomas rescinded by the National Bar Association in 1998 .

In his later years Higginbotham filled a variety of additional roles. He served as an international mediator at the first post-apartheid elections in South Africa in 1994 , lent his counsel to the Congressional Black Caucus during a series of voting rights cases before the Supreme Court, and advised Texaco Inc. on diversity and personnel issues when the firm came under fire for alleged racial discrimination in 1996 . In failing health, Higginbotham’s last public service came during the impeachment of President Bill Clinton in 1998 , when he argued before the House Judiciary Committee that there were degrees of perjury and that President Clinton’s did not qualify as “an impeachable high crime.” The recipient of several honorary degrees, Higginbotham also received the Raoul Wallenberg Humanitarian Award ( 1994 ), the Presidential Medal of Freedom ( 1995 ), and the NAACP’s Spingarn Medal ( 1996 ). After he and his first wife divorced in 1988 , Higginbotham married Evelyn Brooks, a professor at Harvard, and adopted her daughter. He died in a Boston hospital after suffering a series of strokes.

Although he never served on the Supreme Court, Higginbotham’s impact on the legal community seems certain to continue. A pioneer among African American jurists, he also made solid contributions in the areas of legal scholarship, training, and civil rights.

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