The new movie about Selma is generating controversy for its portrayal of Lyndon Johnson, but the copyright issues surrounding the movie also point to Martin Luther King Jr’s unique role in our political life. MLK’s children did not grant permission for the film to use Dr. King’s actual words at Selma (“How Long? Not Long!”). While I think that the film’s producers would have won in copyright infringement suit by asserting fair use, maybe they would have lost, and there was no way to get that resolved in time to release the movie for the 50th anniversary of the Voting Rights Act.
Why doesn’t this problem arise for other great American political leaders? Part of the answer is that public officials cannot copyright their public statements made in an official capacity. Supreme Court Justices do not own their opinions. Presidents do not own their State of the Union Speeches. And so on. These documents are in the public domain from the moment that they are released. MLK, though, is the only (or most) consequential political figure who never served in an official role. Thus, he could copyright his speeches and writings. Congress could buy the copyrights from MLK’s children, but this would be unprecedented.
I suspect that if MLK were still alive (he would be younger than Jimmy Carter or Bush 41), he would not be enforcing his copyrights in the way that his estate does. But then again, much more might be different today if MLK were still with us.