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A few days ago The Hollywood Reporter featured another interesting story concerning Martin Luther King or – to be more precise – his pretty litigious estate.

This time the fuss is about already critically acclaimed (The New York Times critic in residence, AO Scott, called it “a triumph of efficient, emphatic cinematic storytelling”) biopic Selma, starring David Oyelowo as the Rev Dr Martin Luther King, Jr.

The film starts with King’s acceptance of the Nobel Peace Prize in December 1964 and focuses on the three 1965 marches in Alabama that eventually led to the adoption of the Voting Rights Act later that year.

The King estate has not expressly objected to the making of this film. However, back in 2009 the same estate had granted DreamWorks and Warner Bros a licence to reproduce King’s speeches in a film that Steven Spielberg is set to produce but has yet to see the light. Apparently Selma producers attempted in vain to get permission to reproduce King’s speeches in their film. What happened in the end was that the authors of the script had to convey the same meaning of King’s speeches without using the actual words he had employed.

Put it otherwise: Selma is a film about Martin Luther King that does not feature any actual extracts from his historic speeches.

Still in his NYT review, AO Scott wrote that “Dr. King’s heirs did not grant permission for his speeches to be quoted in “Selma,” and while this may be a blow to the film’s authenticity, [the film director] turns it into an advantage, a chance to see and hear him afresh.”

Indeed, the problem of authenticity has been raised by some commentators who have argued that, because of copyright constraints, historical accuracy has been negatively affected.

But is this all copyright’s fault? Is it really true that if you are not granted permission to reproduce a copyright-protected work, you cannot quote from it?

Well, probably not. Copyright may have many faults and flaws, but certainly does not prevent one from quoting from a work, provided that use of the quotation can be considered a fair use (to borrow from US copyright language) of, or fair dealing (to borrow from other jurisdictions, e.g. UK) with such work. Let’s consider the approach to quotation in the country of origin, i.e. the United States.

§107 of the US Copyright Act states that the fair use of a work is not an infringement of copyright. As the US Supreme Court stated in the landmark Campbell decision, the fair use doctrine “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity that the law is designed to foster.”

Factors to consider to determine whether a certain use of a work is fair include:

1. the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes (the fact that a use is commercial is not per se a bar from a finding of fair use though);
2. the nature of the copyright-protected work, e.g. if it is published or unpublished;
3. amount and substantiality of the taking; and
4. the effect upon the potential market for or value of the copyright-protected work.

There is fairly abundant case law on fair use as applied to biographies. With particular regard to the re-creation of copyright-protected works (as it would have been the case of Selma, should Oyelowo/King had reproduced actual extracts from King’s speeches), it is worth recalling the recent (2014) decision of the US District Court for the Southern District of New York in Arrow Productions v The Weinstein Company.

This case concerned Deep Throat‘s Linda Lovelace biopic, starring Amanda Seyfried. The holders of the rights to the “famous [1972] pornographic film replete with explicit sexual scenes and sophomoric humor” claimed that the 2013 film infringed – among other things – their copyright because three scenes from Deep Throat had been recreated without permission. In particular, the claimants argued that the defendants had reproduced dialogue from these scenes word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting, and reproduced costumes and settings.

The court found in favour of the defendants, holding that unauthorised reproduction of Deep Throat scenes was fair use of this work, also stressing that critical biographical works (as are both Lovelace and Selma) are “entitled to a presumption of fair use”.

In my opinion reproduction of extracts from Martin Luther King’s speeches would not necessarily need a licence. It is true that the fourth fair use factor might weigh against a finding of fair use (this is because the Martin Luther King estate has actually engaged in the practice of licensing use of his speeches). However the social benefit in having a truthful depiction of King’s actual words would be much greater than the copyright owners’ loss. Also, it is not required that all four fair use factors weigh in favour of a finding of fair use, as recent judgments, e.g. Cariou v Prince or Seltzer v Green Day, demonstrate. Additionally, in the context of a film like Selma in which Martin Luther King is played by an actor (not incorporating the filmed speeches actually delivered by King), it is arguable that the use of extracts would be considered highly transformative.

In conclusion, it would seem that in principle that US law would not be against the reproduction of actual extracts from copyright-protected works (speeches) for the sake of creating a new work (a biographic film).

This article originally appeared on The IPKat in a slightly different format on Monday 12 January 2015.

Featured image credit: Dr. Martin Luther King speaking against war in Vietnam, St. Paul Campus, University of Minnesota, by St. Paul Pioneer Press. Minnesota Historical Society. CC-BY-2.0 via Flickr.

The post Selma and re-writing history: Is it a copyright problem? appeared first on OUPblog.

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So, as you may know, I sold the film rights to the first three GHOST HUNTRESS books to the fabulous folks at Shoulderhill Films. They are hard at work trying to find the perfect screenwriter for the project, as well as the right movie company. They've started a GHOST HUNTRESS fan page on Facebook (please join!) and are asking fans who you think should play Kendall?

So...who do you think should play here?

Here are some of the top suggestions so far...

Victoria Justice



Miley Cyrus



Miranda Cosgrove



Demi Lovato



Emma Watson



Or do you have another suggestion? Let me know!

Hugs,
Marley = )

Ghost don't hang up their sheets November 1st
GHOST HUNTRESS: THE REASON - available now!

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Tomorrow night (Thursday, December 17th) is the online holiday party for the literary agency that I'm with. In celebration of the holiday, they're holding a chat featuring my book, co-authored with the amazing Cecil Murphey, CHRISTMAS MIRACLES. Here are the details! Please join us for the fun!



And the winner of last week's CHRISTMAS MIRACLES contest is....

Llehn!

Please e-mail me directly with your snail mail information at marley.h.gibson AT gmail DOT com. I'll do my best to get it to you before Christmas.

And finally....some AMAZING news for my GHOST HUNTRESS series. My awesome film agent, Sean Daily at Hotchkiss and Associates, on behalf of my literary agent, Deidre Knight, has SOLD the option to GHOST HUNTRESS: THE AWAKENING to Shoulderhill Productions with the intention of making it into a feature film!!! Whoooohoooo!!! Merry Christmas to me! LOLOL!!!

Hope to see you at the TKA chat tomorrow night!

Hugs and Happy Holidays,
Marley = )

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Following on from yesterday's post, I was looking for a link, and wound up on a five year old post from this blog. And on rereading it it made me smile, enough that I thought I'd repost some bits of it here. All of my guesses were interestingly wrong.

(The unnamed Zemeckis project I refer to is The Fermata; the unnamed Dave McKean thing would have been the as-yet unwritten and untitled MirrorMask.)

Last night's e-mail brought Henry ("Nightmare Before Christmas") Selick's second draft script for CORALINE. Henry's first draft of the script was utterly faithful to the text of the book -- if anything, too faithful. This version was both looser and truer to the spirit of the book -- he'd added a character, made the beats in the first act slightly different, but the changes were the all kind of changes that need to exist when translating a book into a film, and the core characters -- Coraline, her parents, the Cat, the Other Mother -- and the story are still just the same. Very creepy and a great deal of fun. Apparently it was very well received by the studio.

It's weird -- there are so many movie projects out there based on stories or books of mine that I (a) lose track and (b) assume as a general rule for piece of mind that none of them will happen. But i think we're getting to the point where the probabilities are starting to suggest that something has to happen.

Really we need a tote board, with Coraline, Good Omens, Murder Mysteries, Stardust, Books of Magic, Neverwhere, Death, and (trailing way behind) Sandman on it, along with anything I've forgotten or intentionally not mentioned (like the Robert Zemeckis project, or the Dave McKean film), not to mention various of the odd projects I've collaborated on over the years, like Beowulf, or Interworld, which, just as I'm certain they're utterly dead, stir in their graves and yawn and blink and sit up and ask for coffee. I think Good Omens will probably come in first, but an outsider like Books of Magic or Murder Mysteries might come in and pip it at the post....

Proving that I was a very bad guesser. And five years later, Henry's Coraline is in production. (If you read this very technical blog entry you'll know a few things that haven't yet been widely announced.) Dave McKean's MirrorMask was the first film to come out. Stardust will be second, and Beowulf (which I'd assumed was dead back then) is third.

Coraline will be fourth, around Hallowe'en 2008.

Books of Magic is currently in suspended animation -- as is, I guess, Good Omens, unless someone wants to give T. Gilliam 70 million dollars. Neverwhere, having been pretty much dead for years has recently pushed its way out of the grave and is currently lurching enthusiastically around the village terrorising villagers, or at least, I've just been asked to do a rewrite on a draft of the script I did in early 2000. And then, of course, there's still Death.

...

While this is a question that pertains to my "homework" (my Master's thesis, to be precise), I'm not asking you to do it for me. :) Mostly, I wanted to know, in your personal opinion (mostly for a quotable quote and another person besides Ursula K. Le Guin to cite on the subject, though she's wonderful in and of herself) whether you've noticed a difference in the reception of Fantasy in Britain and in America. Le Guin thinks there is (or was; that essay was written in the 70s), but you share your time with Britain and America enough that I figured you'd have a perception of the difference--if there is one.Thanks so much! Shiloh C.

I'm not sure which essay you're referring to, and I'm not really certain what you're asking. Are there differences between critics writing about fantasy in the US and the UK, or fans, or educated readers? Perhaps, but I don't really see enormous differences between them these days -- I suspect that the differences have been eroded somewhat in the last 30 years. I don't know if you surveyed Americans and got their favourite books, you'd get quite as much fantasy as you did when the BBC did it to the British(http://www.bbc.co.uk/arts/bigread/top100.shtml) (I counted 37 fantasy titles. Your numbers may differ) but you might.

Hi Neil ; I purchased the audio collection from itunes a while back. My son just loves listening to it. His favorite is the Wolves in the Walls. The interview Maddy did was very cute. I was wondering if you plan on continuing to publish audio books, both children's stories as well as novels ? I completely agree with you that there is something special about an author reading their stories. Take care and best wishes ~ william

Definitely. Actually today I got CDs of both M is for Magic (read by me) and Interworld (read by Christopher Evan Welch and I'm listening to it as I type this. He does a lovely job). Later this year the full audio of Neverwhere should come out.


Here's a taster for the Interworld audio. It's tracks 1 (which is the title and copyright), 2 3 and 4 of the audio CD, in MP3 format. It's the first couple of chapters...

1-01%20Track%2001.mp3
1-02%20Track%2002.mp3
1-03%20Track%2003%204.mp3
1-04%20Track%2004%205.mp3

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Today the snow stopped falling, the sun came out, and it's almost blinding. A picture postcard day. I took another photo from the guest bedroom (it used to be Holly's bedroom, but she's now going to be sleeping in the new upstairs library when she's here, as soon as it's finished) just to compare with yesterday's photo, to show the sunlight and the even-more-snow of it all...



So I'm taking this short story class this quarter; well, it's almost over actually. Anyway, my teacher's response to the entire class about our final drafts was one of "they could still use a lot of work." She emphasized how Annie Proulx, the writer of the story "Brokeback Mountain," revised the story sixty times before finally being finished with it.

On that note, firstly, what's your revision record (i.e. the most
revisions of any body of work you've done)? And second, what's your
stance on the amount of revision that should be necessary? -Malinda

I think Murder Mysteries went through about twelve revisions of the basic text, which is far and away the most I've ever done, but a lot of that was because I wanted the murder mysteries in question to work and be satisfying, for all the clues to be there for the reader, and I'm not really a natural mystery writer.

Most short stories go through a couple of drafts and a polish -- I'll write a first draft, then (if it wasn't typed) I'll type it up, and then I'll email it to friends and find out what didn't work, or puzzled them. (I miss Mike Ford. He was the sharpest of all of them -- saved me from making a fool of myself half a dozen times.) And then, if I can, I'll put it away for a week or two. Not look at it. Try to forget about it. Then take it out and read it as if I've never seen it before and had nothing to do with its creation. Things that are broken become very obvious suddenly. I'll go in and polish it up, and possibly keep playing with it a little -- it's on the computer: everything's malleable until it's printed. I'll try and read it aloud the next time I do a reading, in order to find out what I can about it, including places where what I wrote was not what I meant, and I'll fix what I find. And then I'll go on to the next thing.

Personally, I think you learn more from finishing things, from seeing them in print, wincing, and then figuring out what you did wrong, than you could ever do from eternally rewriting the same thing. But that's me, and I came from comics where I simply didn't have the liberty of rewriting a story until I was happy with it, because it needed to be out that month, so I needed to get it more or less right first time. Once I disliked a Sandman story on proofreading it so much that I asked if it could be pulled and buried and was told no, it couldn't, which is why the world got to read the Emperor Norton story, "Three Septembers and a January", although I no longer have any idea why I thought it was a bad story, and I'm pleased that Tom Peyer ignored my yelps.

When I was younger and people handed me unfinished things to read, I'd have lots of comments. At least once I realised later that I'd killed a fledgling book for someone by pointing out an abrupt viewpoint shift at a point where the book was barely hatched. These days my comments tend to consist of variants on "That's really interesting. What happens next? Where's the rest of it?"

Hey, Neil. I was just browsing next to a coworker of mine, when he looked over to my station and asked, "More weird stuff about giraffes?" as I had previously found myself at the giraffe haters monthly website (giraffobia.com). I said, "No, but there's probably something on giraffes on here." Imagine my surprise when the site search listed no hits for either 'giraffe' or 'giraffes'. I feel this is an error
which must be corrected, if only by posting this request.
Yrs trly, Jeff

Consider it fixed.

Hi Neil,

I read through your FAQ and yes, I am another one of those film students wishing to make a short film from one of your stories, either "Chivalry" or "We Can Get Them for You Wholesale" from the novel "Smoke and Mirrors".

In the FAQ it says that you don't own the rights to anything but "Mr. Punch" and "Stardust". Does this mean that I have to go to the book publisher to ask to make it, and if so, is that Avon Books or Headline Book Publishing? or are they the same thing?

I'm sorry if you are sick of people asking you these questions. And if by great luck and good chance I am allowed to make it do you mind?
Much Love, Jen.

Actually, what it says in the FAQ (which has its own problems, alas, I just realised on looking at it, and really needs a big overhaul) is, in response to questions about adapting Sandman mostly,

No, I don't control any of the rights to any of the stuff I did for DC Comics -- Sandman, Hellblazer, or anything (except Mr Punch and Stardust). DC Comics does.

If you try and get the rights to do a student film, they will say no. This is because all those rights are already tied up, and DC Comics no longer has those rights to grant, not because they are being mean.

I'm not sure how you got from that I don't own any of my short stories or novels. I do, don't worry. I was talking about stuff published by DC Comics -- Sandman, Black Orchid, the short stories. If you want the rights to any of that, you go and talk to DC.

My agents can't grant permission for you to make a film of "Chivalry" because Miramax bought it some years ago (I think it's something Harvey Weinstein took with him when he left). But apart from that, you just contact my agents.

As for student films of We Can Get Them For You Wholesale, you should read http://www.neilgaiman.com/journal/2002/09/just-watched-lovely-we-can-get-them.asp
and then read (more importantly, for all Student Films including that one) http://www.neilgaiman.com/journal/2005/05/beagles-girls-movies.asp which explains why we're pretty strict about making sure that the free rights for student films stay just that.

...

I've not been a huge fan of my German book covers up to now -- you can see some at http://www.neilgaiman.de/buecher/index.html -- but was thrilled to see the Heyne Anansi Boys cover...
...

And finally, now playing: Barbara Kooyman's Undercover. I loved Timbuk 3 -- one of the best gigs I ever went to was a tiny Timbuk 3 concert in a basement under a flyover in Westbourne Grove -- and here Barbara K, who was half of the 3 before they broke up, does acoustic covers of ten of their best songs, a decade later, as a benefit for Public Radio. It's marvellous. I learned about it when someone sent me a link to http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid%3A449447. You can hear a track and find out about it at http://sparrowswheel.org/ and buy it at http://texamericana.org/store/cds/Undercover/

I wish she'd covered "Standard White Jesus", though... Read the rest of this post

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