Amid the commercial miasma swirling around Sunday's Super Bowl telecast, one advertisement actually stood out as something of a cultural and social event. It was an ad for Ram trucks, featuring the uplifting words of none other than Martin Luther King Jr.
The ad provoked immediate comment on social media—none of it, as far as we can tell, positive. It was seen as a landmark in crassness. That was true not least because in the speech excerpted for the ad, a 1968 sermon entitled "The Drum Major Instinct," King spends some considerable time excoriating the advertiser-driven quest for material acquisitions, including cars.
"We are so often taken by advertisers," he declared. "They have a way of saying things to you that kind of gets you into buying…. You've seen people riding around in Cadillacs and Chryslers who don't earn enough to have a good T-Model Ford." Those words weren't in the script for the Ram truck company (which is owned by, yes, Fiat Chrysler). The ad just stuck to King's exhortation to become great by serving others.
Although the use of King's words and voice was authorized by the King estate, it may have deepened an old wedge between some of his children. Even before the Super Bowl ended Sunday night, Bernice King, CEO of the King Center for Nonviolent Social Change, was weighing in on the Ram ad via Twitter: "Neither @TheKingCenter nor @BerniceKing is the entity that approves the use of #MLK's words or imagery for use ..including tonight's @Dodge #SuperBowl commercial."
That was an implicit slap at her brother Dexter, who apparently plays a larger role in managing the licensing of their father's intellectual property via an entity called Intellectual Properties Management. But the issue of how to license Martin Luther King Jr.'s legacy and to whom has a long history.
The issue was brought into sharp relief in the recent past by several events. One was the 50th anniversary of the March on Washington in 2013. "I Have a Dream" could have been broadcast far and wide to commemorate the anniversary, but its dissemination was limited by the estate's demands for licensing fees from commercial publications and broadcasters.
The second was the disclosure in 2009 that the family had charged the nonprofit foundation raising money for the Washington memorial to the civil rights leader $800,000 for the use of his words and image.
An even earlier furor erupted when the estate licensed the "I Have a Dream" speech to the telecommunications company Alcatel for an ad campaign in 2001. "If Martin were alive, he and I would be meeting with Alcatel right now, saying, 'How many blacks and women on your board?'" the Rev. Joseph Lowery, an old ally of King's, said at the time. "Martin Luther King must not be used as a huckster for some corporation."
And now comes Ram trucks, barreling into the old controversy. (Although many commenters think of the advertiser as Dodge Ram trucks, the old nameplate, Chrysler split Dodge cars and Ram trucks into separate brands in 2009.)
It's not unusual for the heirs of famous individuals to continue to profit from their forebears' work. The estates of performers such as Groucho Marx and Frank Sinatra assiduously cultivate their performance rights for profit and just as assiduously pursue supposed infringers. They're abetted by U.S. copyright law, which has been getting steadily rewritten to tighten their control at the expense of public availability. The debate over how to balance the public's right eventually to gain unfettered access to historical material with the right of heirs to profit (or profiteer, if you wish) is unresolved, and possibly unresolvable.
Yet everything Groucho and Frank did was for profit, which puts them on rather a different stage from Martin Luther King Jr., who worked chiefly for the public good. No one is erecting monuments to Groucho and Frank on the edge of the Capitol Mall in Washington; no one regards anything they did as a sociopolitical event on the order of the March on Washington on Aug. 28, 1963, when King delivered his "I Have a Dream" speech to 200,000 onlookers at the Lincoln Memorial.
The issue is not so much who owns King's intellectual property but the uses to which it is put. The estate sometimes seems more inclined to go for the commercial main chance than to get King's words and thoughts disseminated in an appropriate context. Filmmaker Ava DuVernay, for example, said she had to write new speeches for the King character in her 2015 movie "Selma" because the estate already had licensed the original words to other producers.
The estate's defenses of its licensing policies can seem awfully tortured. Eric Tidwell, managing director of Intellectual Properties Management, told us by email that "when Ram approached the King Estate...we were pleasantly surprised at the existence of the Ram Nation volunteers and their efforts. We learned that as a volunteer group of Ram owners, they serve others through everything from natural disaster relief, to blood drives, to local community volunteer initiatives…. We found that the overall message of the ad embodied Dr. King's philosophy that true greatness is achieved by serving others."
It's one thing to vet a commercial campaign to ensure it doesn't undermine King's message; quite another to pretend that a profit-making corporation is undertaking its charitable efforts out of altruism, or that the King estate isn't involving itself, for money, in a truck company's effort to greenwash its reputation.
One senses a certain ambivalence even in Bernice King's reaction to the Super Bowl ad. Her comment Sunday night wasn't exactly a full-throated disavowal of the ad. In fact, it was rather disingenuous, given that Intellectual Properties Management operates out of the King Center's premises. The Center's own website refers inquiries about licensing to IPM, giving its email and phone number. Moreover, at least some of the funds raised by IPM go to the King Center. Neither IPM nor the center responded to my questions about how the funds are disbursed, but the center's most recent tax disclosures, for tax year 2015, showed a net $466,899 coming from "sales of inventory."
It's only fair to point out that the King estate isn't all that restrictive about granting public access to the civil rights leader's work. Its efforts appear mainly to focus on commercial exploitation, as opposed to educational or informational uses. The King Center maintains an archive that is open to researchers and posts some material—the text of the "Drum Major" sermon, for instance—on its website. Anyone wishing to read "I Have a Dream" and hear the audio recording can find both, in an interactive presentation, at this website sponsored by Stanford University.
The guidestar to the issue of King's copyrights is a 1999 ruling from the Atlanta-based U.S. 11th Circuit Court of Appeals in a lawsuit brought by the King estate—chiefly his surviving children — against CBS. The court found that rights to the "I Have a Dream" speech, which CBS had used in a documentary without permission, belonged to the estate, not the public.
In the 2-1 decision, the court reasoned that the 1963 speech was not so much a public event as a "performance." The speech was delivered in a public place to 200,000 spectators and was broadcast on television and radio in real time, the majority acknowledged. But that wasn't sufficient to place it in the public domain, any more than a public performance of a play strips the playwright of his or her right to be paid royalties or displaying a contemporary artwork in a gallery, even for free, places it in the public domain.
The appeals judges sent the case back to the federal judge who initially had rejected the estate's claim, but the family and CBS reached a settlement before it could be retried.
Ever since, the issue of the copyright of this speech in particular has been bathed in a misleadingly rosy glow, as though it belongs to us all. "The insistence on payment for the use of the 'I Have a Dream' speech is a particular outrage," George Washington University law professor Jonathan Turley wrote in The Times in 2009. "King gave that speech to a nation -- and a nation responded by rallying to his cause of public service and justice."
Well, not exactly. About a month after its delivery in 1963, King himself applied for and received a copyright on the speech. He promptly filed a copyright infringement suit against 20th Century Fox and Motown, which were selling recordings of the speech, and won.
King's actions to secure his rights are sometimes gussied up by the notion that he wished to ensure that his words wouldn't be distorted by people who didn't share his views. But the court in the 1963 infringement case was satisfied that the profit motive played at least a partial role.
The court observed that King planned to market recordings himself and viewed Fox and Motown as competitors who would cut into "profits...which can be, and are intended to be, used by him in whole or in part to aid the causes with which he is identified."
That still leaves the question of the commercial exploitation of King's words and voice, and who decides. One can sympathize with, even endorse, the idea that the material should be monetized "to aid the causes with with [King] is identified." But Intellectual Properties Management hasn't shown especially good judgment about granting permission. If King's words were all in the public domain, they might be more widely exploited for advertising, but the responsibility would be the advertisers'—and any that abused his words would face public backlash, as have Ram and Chrysler.
But at least the advertisers wouldn't be acting with the explicit approval of members of the King family. That does more to undermine Martin Luther King's legacy than any transparently dishonest ad campaign.
Given King's unique stature as a public figure, it's proper to ask why members of his family should have the last word on licensing. The easy answer is that it's because the law gives them that right. But that's a technicality, albeit a decisive one. But if they're really determined to protect their father's legacy, they should consider voluntarily turning over the decision-making process to a different, or at least a larger, entity. A foundation board comprising scholars and historians, for instance, with advisory roles for business experts and, sure, family members.
The process should be open and transparent, so at least we don't have a situation where some corporation drapes itself in King's preacherly robes while the estate issues fatuous excuses that a TV commercial embodies "Dr. King's philosophy." That doesn't make anyone involved look good, or honest.