Selma and re-writing history: Is it a copyright problem?

A few days ago The Hollywood Reporter featured another interesting story concerning Martin Luther King or – to be more precise – his Martin Luther King leaning on a lectern, 1964. Public domain via Library of Congress.

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.

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