Jackson vs. Video Vendor: Who Has Rights to a Public Speech?

Last month, the Rev. Jesse Jackson, then a candidate for the presidency, gave an emotional, memorable speech at the Democratic convention. It was nationally televised and undoubtedly was taped by many viewers.

But does Jackson--who has said that he earned $100,000 from selling videotapes of his speech to the party’s convention in 1984--have the sole right to sell videotapes of his rousing July 19 address in Atlanta?

The question has sparked a lawsuit by Jackson to stop MPI Home Video, based near Chicago, from selling and distributing its tape of the speech, a 60-minute videocassette entitled “Jesse Jackson: We Can Dream Again.”

Two experts in the respective fields of copyright law and the First Amendment (neither of whom a participant in the suit) call the Jackson case unusual and possibly unprecedented.

It’s a “plausible case,” says the copyright expert, Harvard law professor Arthur Miller.

It also, says First Amendment expert Floyd Abrams, has serious ramifications about how free a politician’s speech actually is.

“The law is not clear in this area,” he says, referring to the question of whether a politician can claim ownership of video rights to speeches he makes in a public forum.

“The concern I have is giving political candidates seeking to offer themselves up to public scrutiny a veto power on the distribution of their speeches,” Abrams says. “It cuts pretty deeply into the First Amendment.”

In their federal court suit in Chicago, Jackson’s lawyers argue that MPI has no right to sell its Jackson videotape, which had a $14.95 list price and used uncut ABC footage that MPI bought from the network for $6,500.

The video company’s lawyers have argued that Jackson’s speech in Atlanta was a news event unprotected by federal copyright law.

A day after filing their suit on July 28, Jackson’s attorneys got a temporary restraining order--which last Friday was extended until Tuesday--that bars MPI from selling and distributing the tape.

Before that, the company had shipped about 7,100 cassettes, MPI Home Video President Waleed B. Ali said in court.

Henry Mason, one of Jackson’s attorneys, said that U.S. District Judge James B. Zagel will issue an opinion Tuesday on the request for a preliminary injunction. If granted, that would continue the ban until the case goes to trial Aug. 30.

The suit seeks a permanent injunction and as-yet unspecified damages, Mason said last Friday in a phone interview from Chicago.

Jackson, testifying in the case two weeks ago, said MPI’s tape had cut into the market potential of one he planned to release and “has hurt our ability to make a living off my work,” according to an Associated Press report.

Mason said that Jackson copyrighted his Atlanta speech after delivering it. The principal reason for that move, he said, was that Jackson had gotten “information that some people were going to appropriate” his speech--in other words, sell videocassettes of it.

He said that Jackson’s suit against MPI, in addition to alleging a copyright violation, also alleges violations of federal trademark law and of “his common-law right of publicity . . . the right of a celebrity to determine himself how he wishes to utilize his name and likeness.”

Harvard professor Miller, emphasizing that he hadn’t seen court papers in the case, nonetheless called it “an unusual one by a politician.”

He said a similar suit in 1963 involved a major public figure with whom Jackson worked before becoming a politician--the late Dr. Martin Luther King Jr. In that case, Miller said, King successfully stopped a record company from selling recordings of his famous “I have a dream” speech.

Ironically, MPI, whose biggest recent seller was a video of Marine Lt. Col. Oliver North’s testimony before a joint congressional committee investigating the Iran-Contra scandal last year, recently put out a video of speeches by King as part of its “Great Leaders” collection.

(MPI’s Ali said his company “voluntarily” pays a percentage of profits from the King cassette to the King Center in Atlanta, even though it is not obliged to nor was requested to by King’s estate.)

What likely will be debated in the Jackson-MPI case, Miller said, “will be a conflict between his property rights in his speech versus whether he abandoned those rights by giving it in a public forum on national television.”

There also, he said, will be “a First Amendment claim--that this is a news event and whatever property rights you may have you simply lose because of the supervening First Amendment interests.”

The latter position is indeed the one MPI has taken, Ali said in an interview from his office in the Chicago suburb of Oak Forest: “We admit freely that we put it (the Jackson cassette) out with the full expectation of making a profit. But I don’t see why that’s inconsistent with the distribution of news.”

Miller said that selling a cassette that has a “news clip” of Jackson’s speech may pose no problem, “but selling the entire speech . . . well, I think it’s going to be an interesting lawsuit.”

Abrams, outside counsel for NBC News, said that if Jackson prevails, it not only would mean that Jackson alone could authorize someone to sell videotapes of his speech, but also that “he could place a permanent gag order on any record of his speech.”

The attorney was asked whether Jackson, if he wins, could bar a network or TV station from reshowing a tape of his Atlanta speech in its entirety.

“Possibly,” he replied. “Let me put it more strongly. If Jackson were to win the case, it would put at risk broadcasters who wish to show a significant part, if not all, of Jackson’s speech.

“It really is a case that ups the ante on the continuing tension between copyright law and First Amendment law.”