194 F.3d 1211 (11th Cir. 1999)
In August 1963 the Southern Christian Leadership Conference organized the March on Washington to promote the civil rights movement.1
On the afternoon of August 28, 1963, Dr. Martin Luther King, Jr. delivered his "I Have a Dream" speech before roughly 200,000 people gathered at the Lincoln Memorial.2
The event was broadcast live on radio and television to a nationwide audience of millions.3 It received extensive contemporaneous coverage in daily newspapers across the country.4
On September 30, 1963 Dr. King applied for federal copyright registration for the speech under the Copyright Act of 1909 and received a certificate of registration on October 2. Shortly afterward he filed suit in the Southern District of New York and obtained a preliminary injunction barring the unauthorized sale of recordings of the speech.5
For the next twenty years Dr. King and his estate maintained copyright protection, renewed the registration when required, and licensed the speech for a variety of uses. In 1994 CBS contracted with the Arts & Entertainment Network to produce a documentary segment titled "Martin Luther King, Jr. and The March on Washington." That episode incorporated approximately sixty percent of the speech footage CBS had filmed during the March. CBS did so without obtaining permission from the Estate or paying royalties.6
The Estate of Martin Luther King, Jr., Inc. filed a copyright infringement action against CBS in the United States District Court for the Northern District of Georgia. The district court granted summary judgment to CBS. The Estate appealed to the United States Court of Appeals for the Eleventh Circuit.7
Whether Dr. King's delivery of the "I Have a Dream" speech at the March on Washington constituted a general publication under the Copyright Act of 1909 that placed the speech in the public domain?8
Under the Copyright Act of 1909 an author receives automatic state common law copyright protection upon creation. This protection continues until a general publication occurs.9 A general publication takes place when the work is made available to the public at large without regard to the recipients' identity or intended use. It may also occur when tangible copies are distributed to the public in a manner that permits the public to exercise dominion and control. A general publication may further occur when the work is exhibited so as to permit unrestricted copying by the general public.10 Performance of a work, even before a large audience and with live broadcast, does not constitute general publication.11 Distribution of a work to the news media for the limited purpose of reporting a contemporary newsworthy event constitutes only a limited publication that does not divest common law rights.12
No. Dr. King's delivery of the speech was a performance before a large audience with live broadcast and press coverage.13 Under the governing rule a performance does not constitute general publication regardless of audience size.14 The press coverage was obtained for the limited purpose of reporting a contemporary newsworthy event and therefore constituted only a limited publication.15
The facts therefore do not establish a general publication as a matter of law at the summary judgment stage.16
Dr. King's delivery of the speech did not constitute a general publication that placed the speech in the public domain under the Copyright Act of 1909.17
Related opinions on this issue
Senior District Judge Cook concurs in the result that no general publication occurred but reaches that conclusion on different grounds.18 Cook emphasizes that under both common law and the 1909 Act performance of a work never constitutes publication, general or limited, in the absence of an authorized distribution of a tangible copy without copyright notice.19 Cook reasons that the size of the audience and efforts to obtain press coverage are irrelevant because they merely increase the reach of the performance itself.20
Cook further concludes that the absence of restrictions on copying is likewise irrelevant to performed works. The opportunity to copy a performance does not amount to an abandonment of title or dedication to the public at large.21 Cook would reverse the district court because it improperly treated the performance and related dissemination as factors supporting general publication.22