MLK v. CBS: Copyright | Outside IP Counsel

The Eleventh Circuit held delivering the I Have a Dream speech was a performance, not a general publication, and reversed summary judgment against Dr. King's estate.

In Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999), the United States Court of Appeals for the Eleventh Circuit confronted one of the most famous speeches in American history and one of copyright law’s most treacherous doctrines. When CBS used portions of Dr. Martin Luther King, Jr.’s “I Have a Dream” speech in a documentary without permission, it argued that King had surrendered his copyright by delivering the speech to a live audience of some 200,000 people and a nationwide broadcast audience of millions on August 28, 1963. The court held otherwise. Decided on November 5, 1999, the opinion concluded that a performance, however broad the audience, is not a publication, and that releasing a work to the news media for contemporaneous coverage of a newsworthy event is only a limited publication. Because genuine issues of material fact remained on whether a general publication had occurred, the panel reversed summary judgment for CBS rather than resolve the copyright’s validity. The decision is the modern touchstone for the general-versus-limited publication distinction.

At a glance

Case: Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999).
Decided: November 5, 1999; reversing the Northern District of Georgia’s grant of summary judgment to CBS and remanding. The panel split 2-1, with Chief Judge Anderson writing, Judge Cook concurring in part on separate reasoning, and Judge Roney dissenting.
Holding: On the summary judgment record, CBS did not show that Dr. King’s oral delivery of the speech, even with live broadcast and extensive news coverage, was a general publication. A performance is not a publication regardless of audience size, and release to the news media for contemporaneous coverage is only a limited publication. Genuine issues of material fact remained, so the court reversed rather than declare the copyright valid.
Significance: The definitive modern treatment of general versus limited publication for pre-1978 works. The parties settled after remand, so the appellate opinion is the case’s final word on publication.

The doctrinal frame: publication and the 1909 Act’s formality trap

Because Dr. King delivered the speech in 1963, its copyright status is governed by the Copyright Act of 1909, the regime that controlled American copyright until the 1976 Act took effect on January 1, 1978. Under the 1909 Act, an unpublished work enjoyed common-law copyright protection under state law that lasted, in principle, indefinitely until publication. Publication was the pivotal event. When a work was published with proper statutory copyright notice, federal statutory copyright attached. When a work was published without the required notice, the work could fall into the public domain, an unforgiving formality that destroyed rights in countless works.

The doctrine turned on distinguishing two kinds of publication. A general publication occurred when the author made the work available to the general public without restriction on its use or reproduction. A limited publication, by contrast, communicated the work to a definably select group, for a limited purpose, and without the right of further reproduction or distribution. Only a general publication triggered the 1909 Act’s notice requirement and its risk of forfeiture. Courts, wary of the harshness of divesting common-law rights, developed a strong tendency to construe distributions as limited rather than general when the equities warranted. That interpretive lean sits at the heart of the King case.

The facts: a speech, a registration, and a documentary

On August 28, 1963, at the March on Washington for Jobs and Freedom, Dr. King delivered the address remembered by its refrain, “I have a dream.” The crowd at the Lincoln Memorial numbered roughly 200,000, and the speech was carried live by radio and television to a national audience. About a month later, on September 30, 1963, King took steps to secure federal statutory copyright in the speech under the 1909 Act, and the Copyright Office issued a certificate of registration on October 2, 1963. Almost immediately he sued to stop unauthorized sales of recordings, winning a preliminary injunction on December 13, 1963. See King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y. 1963).

In 1994, CBS contracted with the Arts & Entertainment Network to produce a documentary series, “The 20th Century with Mike Wallace.” One segment on Dr. King and the March on Washington used extensive footage of the speech, amounting to about 60% of the segment’s content, without a license from the Estate, which by then held King’s rights. When the Estate sued for infringement, CBS defended on the ground that King had generally published the speech by delivering it so publicly, thereby losing common-law protection and, in the absence of adequate compliance with formalities, placing the work in the public domain. The district court agreed with CBS and granted summary judgment, holding that a general publication had occurred. The Estate appealed.

The court’s reasoning: performance is not publication

The Eleventh Circuit reversed. Its analysis rested on two connected principles. First, the mere performance or delivery of a work, however wide the audience, is not itself a publication. Reading a speech aloud, staging a play, or broadcasting a live address communicates the work but does not, without more, distribute copies or offer the work to the public for unrestricted reproduction. Under settled 1909 Act doctrine, performance and publication are distinct legal events, and the former does not divest common-law copyright.

Second, the authority the SCLC granted to the press, meaning extensive news coverage including live broadcast, was a limited publication rather than a general one. The court read the case law to hold that distribution to the news media, as opposed to the general public, for the purpose of reporting a contemporary newsworthy event is only a limited publication, and it drew an analogy to Burke v. National Broadcasting Co., 598 F.2d 688 (1st Cir. 1979), where a restriction on copying was implied rather than stated. As the panel put it, a performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent.

It is important to be precise about what the court did not decide. CBS pointed to two other pieces of evidence: an advance text of the speech that was allegedly available in a press tent to members of the public at large, and a September 1963 SCLC newsletter that reprinted the full text without copyright notice. The Estate contested both, arguing that access to the press tent was controlled and that King never authorized the newsletter reprint. Because those disputes were genuine issues of material fact, the court disregarded both at the summary judgment stage, expressly noting that at trial CBS might yet produce evidence of a general publication. The panel therefore did not hold that King’s copyright was valid. It held only that CBS had not established general publication as a matter of law, reversed the summary judgment, and remanded for further proceedings, expressing no opinion on the eventual merits.

What the decision changed

Estate of King is the case practitioners reach for when they must date the copyright status of a pre-1978 work that was performed, broadcast, or circulated in some limited way. It reaffirms two rules with unusual clarity: performance is not publication, and courts will read ambiguous distributions as limited rather than general to avoid the draconian forfeiture the 1909 Act could impose. Because the public-domain status of vast numbers of mid-century works, speeches, sermons, musical performances, and manuscripts, turns on exactly these distinctions, the decision has outsized practical reach despite arising from a single iconic speech.

After the Eleventh Circuit’s remand, the parties settled on July 12, 2000 rather than proceed to trial, an outcome that left the appellate opinion intact as the case’s enduring legal contribution. The reported terms were a donation of an undisclosed amount to the King Center for Nonviolent Social Change, in exchange for which the Estate dropped the suit; CBS kept the right to use and license its own film of the speech, but agreed to tell interested parties how to reach the Estate about its claimed intellectual property. Because the case ended there, no court ever ruled on the copyright’s ultimate validity. The Estate’s continued assertion of rights in the speech has proceeded on the foundation the Eleventh Circuit laid: public delivery and broadcast alone did not generally publish the speech.

Open questions

How does the doctrine apply to modern dissemination? The case involved 1963 broadcast technology. Applying general-versus-limited publication to works circulated through pre-1978 film, tape, and print still generates fact-specific disputes.
What distributions cross into general publication? The court treated release to the press for news coverage as limited but left the advance text and the SCLC newsletter for trial, so the boundary, how large or unrestricted a distribution must be before it becomes general, remains a matter of degree.
How long does the resulting protection run? Because the speech was registered under the 1909 Act, its precise term and renewal status depend on further 1909 and 1976 Act mechanics that the publication holding does not by itself resolve.

Implications for creators and businesses

Performance does not forfeit rights. Delivering a speech, staging a work, or broadcasting a live performance does not, by itself, publish the work or divest copyright. Public presentation and legal publication are different things.
Control distribution of texts and copies. Handing out advance copies to a defined group for a limited purpose, without permitting further reproduction, is a limited publication that preserves rights. Unrestricted public distribution is the danger.
Pre-1978 works require careful dating. For any work created before 1978, counsel must analyze publication, notice, and renewal under the 1909 Act before assuming public-domain status. Estate of King shows how easily a superficially public work can retain protection.
Register promptly and enforce. King’s swift 1963 registration and enforcement strengthened the Estate’s position. Timely formalities and consistent policing reinforce a claim that a work was never abandoned to the public.

Frequently asked questions

Did delivering the I Have a Dream speech put it in the public domain? Not on the record before the Eleventh Circuit. The court held that Dr. King’s public delivery, even to a live audience of some 200,000 people and a nationwide broadcast, was a performance rather than a publication, and that release to the news media for coverage of the March was only a limited publication. Under the 1909 Act, only a general publication without proper notice would have divested his common-law copyright. The court did not declare the copyright valid; it found genuine issues of material fact on other evidence and sent the case back for trial, and the parties settled in 2000.

What is the difference between general and limited publication? Under the 1909 Copyright Act, a general publication occurred when a work was made available to members of the public at large without regard to their identity or what they intended to do with the work, which could forfeit common-law copyright if statutory notice was missing. A limited publication communicated the work to a select group for a limited purpose, without the right of diffusion, reproduction, distribution or sale, and it did not divest common-law rights.

How did Estate of MLK v. CBS end? The Eleventh Circuit reversed the district court’s summary judgment for CBS and remanded for further proceedings, expressing no opinion on the eventual merits. Rather than continue to trial, the parties settled on July 12, 2000: CBS made an undisclosed donation to the King Center for Nonviolent Social Change and kept the right to use and license its own film of the speech, while agreeing to refer interested parties to the Estate. The appellate ruling on performance and limited publication stands as the case’s lasting legal contribution.