Copyright "Deja Vu": A New Definition of "Publication" Under the Copyright Act of 1909
"I have a dream," Dr. Martin Luther King, Jr., declared from the steps of the Lincoln Memorial during the March on Washington in 1963. About 200,000 people had gathered to listen to Dr. King's famous speech and to participate in the events of the day. Millions more witnessed the live broadcast on major television and radio stations. Others read the text of the speech in newspapers across the country. Just over a month later, Dr. King applied for federal copyright protection for the speech. Under federal copyright law at the time, an owner who published a work prior to complying with statutory formalities lost his ownership rights. Thus, the question arose: did Dr. King's delivery of the speech coupled with its extensive reproduction and dissemination constitute a publication of the speech, thereby forfeiting his ownership rights? Although the speech was delivered over forty years ago, litigation concerning the existence of this copyright has persisted into the twenty-first century. Others continue to litigate their own copyright disputes regarding musical compositions and other works created decades ago. The problem stems from an almost one- hundred-year-old statute with a glaring gap. The statute, the Copyright Act of 1909 ("1909 Act"), which governs disputes of whether a work was published before 1978, fails to provide the definition of its key term-"publication."' Accordingly, for nearly a century, courts and scholars have disputed the definition of publication under the 1909 Act and the application of that definition to cases." Discrepancies exist not only between jurisdictions, but also within them, as manifested by the Eleventh Circuit's decision in Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., in which each member of the three-judge panel disagreed either on the appropriate definition of publication or on its application to the facts of the case. This Note proposes a new definition that is simple, complete, and consistent with the 1909 Act as written and with the Act's dual purposes of promoting the free dissemination of ideas through a reward of a limited monopoly to authors. Part II presents a background of the 1909 Act by examining its continued relevance, its dual policies, some of its methods for implementing those policies, and the significance of publication to the 1909 Act. Part III analyzes leading definitions of publication, areas of consensus and disagreement in their application, and exploitations of works not generally considered publication. Part IV offers a new definition of publication under the 1909 Act: subject to three exceptions, publication is the exploitation of a work authorized by the author and/or owner of the work. Part V applies this definition to the facts of several notable cases and demonstrates how it serves the purposes of the 1909 Act.