“I Have a [Fair Use] Dream”: Historic Copyrighted Works and the Recognition of Meaningful Rights for the Public

Dr. Martin Luther King wrote and delivered his famous “I Have a Dream” speech more than fifty years ago. When he obtained copyright protection on the speech in 1963, Dr. King (and later his estate) would have expected the copyright to last a maximum of fifty-six years. That fifty-six-year copyright has become a ninety-five-year copyright, thanks to lengthy duration extensions enacted by Congress in the mid-1970s and late 1990s. As a result, the copyright on the “I Have a Dream” speech will not expire until the end of 2058. Because the Estate of Martin Luther King, Jr., Inc. and its affili- ates have closely guarded the speech in a copyright enforcement and li- censing sense, the public seldom sees more than snippets of one of the most highly regarded speeches in history. Greater public exposure to the full speech would serve important purposes of the sort recognized by Congress in the fair use section of the Copyright Act. However, those interested in borrowing from or otherwise using the speech have tended to drop their plans or have obtained a costly license from the King Estate or one of the affiliated entities—even when the users may had have a plausible right under the fair use doctrine to borrow from or use the speech without ob- taining a license. With the copyright on the speech not expiring until the end of 2058, there is a danger that the snippets-only nature of the pub- lic’s exposure to the speech will remain the status quo for more than another four decades. Infringement cases that have not been settled by the parties have yielded judicial rulings on whether the “I Have a Dream” speech was properly copyrighted, but no case has been litigated extensively enough to permit a court to address the defendant’s fair use defense. This Article proposes a fair use analysis appropriate for use by courts in the event that a user of the “I Have a Dream” speech departs from the usual tendency to obtain a license in order to avoid litigation and, instead, rests its fate on the fair use doctrine. The proposed analysis gives a suitably expansive scope to the fair use doctrine for cases dealing with uses of the speech or similarly historic works, given the important public purposes that could be served by many such uses. The Article also develops a test for use in determining whether a work is sufficiently historic, for purposes of the fair use analysis proposed here

Tobacco Advertising and the First Amendment: Striking the Right Balance

With the enactment of the Family Smoking Prevention and Tobacco Control Act of 2009, Congress launched a major expansion of its regulatory efforts regarding tobacco advertising and promotion. The Act restricts advertising in various ways, featuring a requirement for updated textual versions of health warnings long required for cigarette packages, as well as a requirement that cigarette advertisements must be accompanied by prominently displayed color graphic images to be designed by the U.S. Food and Drug Administration (FDA). The Act’s advertising restrictions and the color graphics requirement have been challenged on First Amendment grounds, as has an FDA regulation setting forth graphic images that tobacco companies were to use. A federal court of appeals struck down the FDA regulation and sent the agency back to the drawing board, but another federal court of appeals upheld the color graphics requirement and most of the advertising restrictions in the statute. This Article analyzes the decisions in light of the various, sometimes inconsistent strains of First Amendment principles that the Supreme Court has adopted, explores what Congress and the FDA should be able to do in regulating tobacco advertising and promotion without violating the First Amendment, and recommends analyses for use in the event that the Supreme Court agrees to decide a tobacco advertising case

Bottom-up or Top-down? Removing the Privacy Law Obstacles to Healthcare Reform in the National Healthcare Crisis

Issues of healthcare availability and quality are among the most profound facing our nation. If a high-quality, accessible healthcare system of a truly national nature is to be devised, electronic connectivity—including increased use of electronic medical records and similar technological advances—must be a key feature. Yet such connectivity may give rise to patients’ concerns regarding the privacy of their medical information. Because such concerns demand respect, a challenge lies in balancing patients’ privacy interests against the important information-sharing interests underlying a national healthcare network. The Health Insurance Portability & Accountability Act (HIPPAA) is a key federal law that addresses many privacy issues regarding patients’ medical information, but HIPAA does not preempt state laws that furnish greater privacy protection than HIPAA provides. Accordingly, there exists a patchwork quilt of differing privacy protection provisions. This Article explores the issues just outlined and stresses the importance of a stronger federal role in standardizing medical information privacy rules, so that the current patchwork quilt of privacy regulations does not impede the development of a national healthcare network

Bottom-up or Top-down? Removing the Privacy Law Obstacles to Healthcare Reform in the National Healthcare Crisis

Issues of healthcare availability and quality are among the most profound facing our nation. If a high-quality, accessible healthcare system of a truly national nature is to be devised, electronic connectivity—including increased use of electronic medical records and similar technological advances—must be a key feature. Yet such connectivity may give rise to patients’ concerns regarding the privacy of their medical information. Because such concerns demand respect, a challenge lies in balancing patients’ privacy interests against the important information-sharing interests underlying a national healthcare network. The Health Insurance Portability & Accountability Act (HIPPAA) is a key federal law that addresses many privacy issues regarding patients’ medical information, but HIPAA does not preempt state laws that furnish greater privacy protection than HIPAA provides. Accordingly, there exists a patchwork quilt of differing privacy protection provisions. This Article explores the issues just outlined and stresses the importance of a stronger federal role in standardizing medical information privacy rules, so that the current patchwork quilt of privacy regulations does not impede the development of a national healthcare network

Beyond the Schoolhouse Gate: Protecting the Off-Campus First Amendment Freedoms of Students: \u3ci\u3eThomas v. Board of Education\u3c/i\u3e, 607 F.2d 1043 (2d Cir. 1979), \u3ci\u3ecert. denied\u3c/i\u3e, 48 U.S.L.W. 3536 (U.S. Feb. 19, 1980) (No. 79-1021)

This note analyzes the Thomas v. Board of Education decision, focusing on high school students\u27 freedom to produce essentially off-campus publications having limited connection with the school, and the propriety of inhibitory intervention on the part of school officials. I. Introduction II. A Decade’s Perspective III. The Facts of Thomas IV. The Decision in Thomas … A. Analysis … B. The Concurrence in the Result V. Conclusio