The Martin Luther King Jr. biopic “Selma” — up for two Academy Awards this evening, including best picture — has had its share of controversy. Questions regarding the historical accuracy of writer David Webb’s and director Ava DuVernay’s portrayal of President Lyndon B. Johnson’s obstreperous stance toward the Voting Rights Act have dogged the picture since its late-December release. These kinds of issues have a way of cropping up around based-on-a-true-story pictures when award time rolls around, almost as if some other Oscar contender’s PR strategy includes smearing the competition. You may remember similar questions about “Zero Dark Thirty” two years ago. Before that, “A Beautiful Mind” and “Hurricane” were put through a similar wringer. It’s certainly possible that the criticism has cost “Selma” a nomination in the best screenplay category, but as a screenwriter, I feel confident in suggesting that very few (if any) “true” stories translated to the silver screen don’t benefit from the amping up of conflict between sides. Conflict, after all, is the coin of the realm in drama.
However, there is some quiet conflict in the development of the screenplay itself of far more personal interest to me than the degree to which LBJ was rightly or wrongly vilified in the film. Notice that there is no public outcry that King’s dialogue and speeches as represented in “Selma” are unrealistic or out of character. This is quite a testament to DuVernay, for one very specific reason: She refrained from using verbatim even parts of the speeches King gave during the time of the Selma campaign. According to her, she took each speech and concentrated on reworking and paraphrasing it, looking to convey the same ideas and rhythms of King’s original speeches but with different words. The production felt it couldn’t chance letting lead actor David Oyelowo recite what King actually said 50 years ago.
Why? Fear of lawsuits. As I know from harsh experience, the King estate can get very litigious. King’s public speeches are all copyrighted and the property of his estate. “Selma” was made without the estate’s involvement or consent. As a public figure, or course, he is fair game; anyone is free to make a movie about him. But his words — the most public and iconic part of him, since his works were primarily delivered as live speeches — are private property. Without licensing those words (which may have been impossible, since Steven Spielberg has already contracted with the estate for King’s life rights), DuVernay had to make a choice: use the words and take the chance or rewrite history.
There is a concept in journalism called the fair use doctrine, which bleeds into documentaries as well as movies about real people. It basically allows copyrighted material to be used as support in another work that is educational or scholarly. But there is no concrete definition of what constitutes fair use, no bright line. Only judges can weigh in with case-by-case answers, which means an expensive lawsuit must be filed to get the question resolved. “Selma” took the path of least resistance, and I don’t think it diminishes the power of the film, its script or Oyelowo’s performance. But it is a shame.
My experience was a bit different. I wrote a book, “Behind the Dream: The Making of the Speech That Transformed a Nation,” about the March on Washington and the “I Have a Dream” speech. My co-author, Clarence B. Jones, was the man who drafted that speech for King and, more amazingly, thought to copyright it before it was delivered. (For arcane reasons, if a speech is not copyrighted before it’s presented, the right of ownership is pre-empted because the speech is essentially given away for public consumption.) In the final stages of the book, we still hadn’t heard back from the King estate on permissions for the excerpted parts of that speech. My co-author was certain we’d get a yes, if only because it was his work on the copyright that has provided the estate with a substantial portion of its income — by some estimates, $1 million a year for the past half-century.
Near the point of no return, I was finally called the offices of the estate’s literary agent to learn permission was being withheld. It wasn’t about licensing fees. There wasn’t a negotiation. The estate wasn’t a fan of our book. I was told that the concept of anyone other than King drafting any of his writings was “an alien concept.” This, despite the many records, including FBI wiretaps, to the contrary. Lawsuits were threatened, and the executor of the estate made clear that it had its own narrow definition of “fair use”: any excerpt of copyrighted work over than 30 words. Imagine, a book about King in which three dozen of his words was considered copyright infringement.
Clarence and I took the path DuVernay did not. We used far more than 30 copyrighted words, we took our chances, and we told the truth. The lawsuits never came. It’s easy to imagine the estate didn’t want to throw a spotlight on our book
Considering all that King gave, I don’t particularly begrudge his family’s looking for some kind of payback. What would be a fair price? Numbers don’t go that high. However, there is something tragic and uniquely American about this lesson to be learned from this fallen hero, the power of his words and how banks and lawyers get between his message and the public’s ears even after all this time.
Would it surprise you to learn that the National Parks Service had to pay nearly $3 million to the estate for the rights to carve a handful of King’s most famous phrases into his monument on the National Mall, not far from where he delivered “I Have a Dream”?
I know it wouldn’t surprise Ava DuVernay.