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ESTATE OF MARTIN LUTHER KING

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1 ESTATE OF MARTIN LUTHER KING, JR., INC., v. CBS, INC. 194 F.3d 1211 (11th Cir. 1999) The Estate of Martin Luther King, Jr., Inc. brought this copyright infringement action against CBS, Inc. after CBS produced a video documentary that used, without authorization, portions of civil rights leader Dr. Martin Luther King's [*1213] famous "I Have a Dream" speech at the March on Washington on August 28, 1963. The district court granted summary judgment to CBS on the ground that Dr. King had engaged in a general publication of the speech, placing it into the public domain. We now reverse.1 I. FACTS The facts underlying this case form part of our national heritage and are well-known to many Americans. On the afternoon of August 28, 1963, the Southern Christian Leadership Conference ("SCLC") held the March on Washington ("March") to promote the growing civil rights movement. The events of the day were seen and heard by some 200,000 people gathered at the March, and were broadcast live via radio and television to a nationwide audience of millions of viewers. The high-light of the March was a rousing speech that Dr. Martin Luther King, Jr., the SCLC's founder and president, gave in front of the Lincoln Memorial ("Speech"). The Speech contained the famous ut-terance, "I have a dream ...," which became symbolic of the civil rights movement. The SCLC had sought out wide press coverage of the March and the Speech, and these efforts were successful; the Speech was reported in daily newspapers across the country, was broadcast live on radio and televi-sion, and was extensively covered on television and radio subsequent to the live broadcast. On September 30, 1963, approximately one month after the delivery of the Speech, Dr. King took steps to secure federal copyright protection for the Speech under the Copyright Act of 1909, and a certificate of registration of his claim to copyright was issued by the Copyright Office on Oc-tober 2, 1963. Almost immediately thereafter, Dr. King filed suit in the Southern District of New York to enjoin the unauthorized sale of recordings of the Speech and won a preliminary injunction on December 13, 1963. See King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y.1963). For the next twenty years, Dr. King and the Estate enjoyed copyright protection in the Speech and licensed it for a variety of uses, and renewed the copyright when necessary. In 1994, CBS en-tered into a contract with the Arts & Entertainment Network to produce a historical documentary series entitled "The 20th Century with Mike Wallace." One segment was devoted to "Martin Luther King, Jr. and The March on Washington." That episode contained material filmed by CBS during the March and extensive footage of the Speech (amounting to about 60% of its total content). CBS, however, did not seek the Estate's permission to use the Speech in this manner and refused to pay royalties to the Estate. The instant litigation ensued. On summary judgment, the district court framed the issue as "whether the public delivery of Dr. King's speech ... constituted a general publication of the speech so as to place it in the public do- 1 Chief Judge Anderson and Judge Cook comprise the majority holding that there has been no publication of the speech that destroyed Dr. King's common law copyright protection. Chief Judge Anderson's reasoning is set out in this opinion; Judge Cook's related but somewhat different reasoning is set out in his separate opinion.2 main." After discussing the relevant case law, the district court held that Dr. King's "performance coupled with such wide and unlimited reproduction and dissemination as occurred concomitant to Dr. King's speech during the March on Washington can be seen only as a general publication which thrust the speech into the public domain."2 Thus, the district court granted [*1214] CBS's motion for summary judgment. The Estate now appeals to this Court. II. DISCUSSION We review the district court's grant of summary judgment de novo, with all facts and reasonable inferences therefrom reviewed in the light most favorable to the nonmoving party. Summary judg-ment was due to be granted only if the forecast of evidence before the district court showed that there was no genuine issue as to any material fact and that the moving party, i.e., CBS, was entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Because of the dates of the critical events, the determinative issues in this case are properly ana-lyzed under the Copyright Act of 1909 ("1909 Act"), rather than the Copyright Act of 1976 ("1976 Act") that is currently in effect. The question is whether Dr. King's attempt to obtain statutory copyright protection on September 30, 1963 was effective, or whether it was a nullity because the Speech had already been forfeited to the public domain via a general publication.3 Under the regime created by the 1909 Act, an author received state common law protection automatically at the time of creation of a work. See 1 Melville B. Nimmer & David Nimmer, Nim-mer on Copyright § 4.01[B] (1998) [hereinafter Nimmer ]. This state common law protection per-sisted until the moment of a general publication.4 When a general publication occurred, the author either forfeited his work to the public domain, or, if he had therebefore complied with federal statu-tory requirements, converted his common law copyright into a federal statutory copyright. In order to soften the hardship of the rule that publication destroys common law rights, courts developed a distinction between a "general publication" and a "limited publication." Only a general publication divested a common law copyright. 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 in-tended to do with the work." Conversely, a non-divesting limited publication was one that commu-nicated the contents of a work to a select [*1215] group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale. The issue before us is whether Dr. King's de-livery of the Speech was a general publication. 2 The district court noted that there potentially was some additional evidence of general publication. First, the SCLC published a newsletter of wide circulation containing the full


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