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By: Seth F. Kirby
The movie Selma, which chronicles Dr. Martin Luther King Jr.’s 1965 voting rights campaign, has received critical acclaim and an Oscar nomination for best picture. It has also generated controversy due to the Academy’s failure to nominate its lead actor and director for awards, which in the eyes of some is indicative of racial bias in Hollywood. Interestingly, another potential controversy hidden within the film has apparently been avoided through the careful consideration of the film’s director and screen writer. Their actions will certainly receive the thanks of the film’s insurers, but historical accuracy has been sacrificed to avoid copyright claims.
Dr. King’s speeches are protected by copyrights held by his estate. In 2009, the estate licensed the speeches and the rights to his life story to Stephen Spielberg’s DreamWorks production company for use in a picture to be produced by Mr. Spielberg. Due, in part to this licensing agreement, and in part to a reluctance to seek permission from the King family for right to use the speeches, Selma’s director sought to find a way around the problem. The solution was simply to rewrite Dr. King’s speeches in an attempt to avoid copyright infringement. By way of example, in the film Dr. King speaks at a funeral and asks “who murdered Jimmie Lee Jackson?” His actual question was “who killed him?” Separately, Dr. King’s impassioned plea to “give us the ballot” was changed to “give us the vote.” I am pretty sure that such minor alterations would not have saved me from a charge of plagiarism in my high school English class, but it is presently viewed as a sufficient change to avoid the ire of the King family.
Assuming that the film production maintained some form of liability insurance, which is almost guaranteed, it may afford the film protection from claims of copyright infringement. While film production liability policies are somewhat unique, standard commercial general liability polices provide coverage for copyright infringement claims under “Coverage Part B,” which provides coverage for certain alleged “Personal and Advertising Injuries.” Under such policies, coverage is provided for negligent infringement of a copyright, but excluded for knowing/intentional violations. The workaround used in Selma presents a coverage dilemma. The screenwriter was aware of the copyright and the potential that that the film would infringe on the protection yet he attempted to avoid a violation and may have subjectively believed that his alterations were enough to avoid a claim. Is his objective belief enough to avoid the application of the policy exclusion, or would coverage be voided if the words used violate the copyright?
Hopefully, the film will avoid generating any claims associated with Dr. King’s copyrights and no one will be forced to wrestle with this coverage question or related defenses of fair use. It is a shame that Dr. King’s actual words were not used in the movie. In an age when our knowledge of history is reduced to what we see on film, Dr. King’s oratory has been purposefully altered, thereby shaping our memory and potentially diminishing the power of his words. I hope that Mr. Spielberg has better success in historical accuracy in his project. “I possess a desire” just doesn’t have the same impact.