Prof. Randal C. Picker, University of Chicago Law School
January 7, 2015

It is the season for movie awards.  Movie reviewers are checking their lists twice to see who has been naughty and nice.  And some movies are released right at the end of the year to a limited number of theaters so as to qualify them for Oscar consideration in the current cycle.  One of those films is “Selma,” a retelling of three months in 1965 centered on the civil rights movement and the march from Selma to Montgomery that led to the passage of the Civil Rights Act of 1965.  As the website for the movie puts it, “SELMA tells the real story of how the revered leader and visionary Dr. Martin Luther King Jr. (David Oyelowo) and his brothers and sisters in the movement prompted change that forever altered history.”

How real exactly is open for dispute, as the movie has become controversial for the way that it portrays the roles of King and President Lyndon Johnson.  Joseph Califano Jr., a Johnson aide, has gone so far as to suggest in a Washington Post opinion piece that the movie’s distortion of history, as he sees it, should disqualify it from award consideration, though as you might imagine, the director, Ava DuVernay, sees matters differently.  And “Selma” is hardly the only fact-based movie this season to face charges of historical mischaracterization, as there have been similar claims about “Unbroken” and “The Imitation Game.”  Of course, movie storytelling and doing history will overlap only imperfectly.

But there is one way in which we can be pretty confident that “Selma” doesn’t tell the real story: It avoids the use of King’s actual words and does so to sidestep any possible copyright issues associated with those words.  As has been widely reported – and I have not seen the movie and so am relying on press reports exclusively – “Selma” tries to draw a careful line by paraphrasing King but not quoting him exactly.  “Who killed him?” becomes “Who murdered Jimmie Lee Jackson?” and “Give us the ballot” becomes “Give us the vote.”

Those seem like small changes, but there clearly is a loss here.  “I have a set of related unconscious images” doesn’t have quite the same majesty as “I have a dream.”  There is a loss in beauty and historical accuracy as filmmakers understandably choose to limit costs or potential liability in connection with telling their version of history.  Indeed, the producers of “Selma” reportedly chose not to try to negotiate rights from Intellectual Properties Management, the firm that acts as licensor for the Estate of Martin Luther King, Jr., Inc.

The nature of running a legal system at scale is that there may often be a poor fit between the aims of a particular statute and outcomes.  Just too many situations to get all of them “right.”  If the point of copyright is to induce the creation of expressive works, we can probably be fairly confident that Dr. King would have created his great historic works even without the lure of control that copyright promises.  As I take it “Selma” makes clear, these were works that were created given the instrumental needs of the civil rights movement and there is little reason to think that copyright was necessary to induce them.

Of course, that isn’t to say that individuals won’t seek to use the tools of the legal system to their advantage in these circumstances or that there is necessarily anything wrong with that.  King sought to register a federal copyright on his famous 1963 speech roughly one month after he gave the speech.  The ensuing litigation tested the boundaries of when material entered the public domain under the Copyright Act of 1969.  That fight was pretty technical, even by the standards of copyright, and King was found to have not inserted the speech into the public domain.  That left open key questions of fair use and the First Amendment, but all of that went away once the suit was eventually settled.  Litigants don’t have strong incentives to define the boundaries of intellectual property carefully, indeed often quite the opposite.

Copyright holders will seek to sell what they can and will have a natural incentive to take postures on copyright doctrines that are maximally protective of their financial interests.  Doing that, alas, will almost always distort history and change the nature of storytelling.  At least for text, it is almost always easier to paraphrase than to litigate over quotes – and paraphrasing is certainly far cheaper when you can buy a new copy of Roget’s Thesaurus for $6.99.