Good Judgment by the Martin Luther King Estate in Not Misusing Trademark Law to Suppress Racist Speech

by Paul Alan Levy

We have often discussed the misuse of intellectual property law claims by corporations and public figures to suppress speech that they do not like (for example, here, here, and here). 

A recent story in the Atlanta Journal Constitution indicates that the estate of Martin Luther King exercised good judgment in not invoking trademark law to try to suppress a racist web site that prominently displays Dr. King’s name and image to depict a leader of the civil rights movement that the site plainly deplores.  The name appears both in the domain name of the web site and throughout the site, and consequently the site is prominently displayed – with its description meta tag promising “the truth about Martin Luther King” – when one uses “Martin Luther King” as a search term on Google.  The AJC quotes a spokesman for the King estate explaining the estate’s forbearance on the ground that the doctrine of fair use and the First Amendment would doubtless protect the creators of the web site.  Even though the racist site may have a slight commercial angle, because it promotes the sale of books by the likes of David Duke, this judgment was certainly correct (here is a recent case on that topic).  The estate also, no doubt, recognized that the white supremacist organization that runs the web site not only would not back down to a threat, but would probably benefit from the notoriety of litigating against the King estate.

There is an ironic angle to this story, at with the Journal-Constitution barely hints with a passing reference to the King heirs having “aggressively defended his name from unauthorized exploitation.”

In fact, the King estate is notorious for shaking down admirers of Dr. King who use his name or image on T-shirts, art work and other materials – uses that would plainly be protected by fair use and the First Amendment.  The King estate routinely threatens artists, teachers, makers of educational materials, and others with suits for trademark or right of publicity violations if they do not agree to pay a royalty for the use.  These threats are usually successful in either obtaining money for the King estate—supposedly to support the work of the King Center in Atlanta—or in discouraging the “unauthorized” use. 

I have often wondered whether the great Dr. King would have approved of his heirs’ abuse of the free speech rights of his posthumous admirers.  The threats may also be counterproductive – perhaps the shakedowns sometimes result in payment, but I know of many cases where a person with limited resources just decided not to promote Dr. King’s memory because they could neither afford to pay royalties nor take the risk of being sued.

Because a “fan site” can be just as protected from trademark claims as a gripe site, it will be interesting to see whether King admirers who receive legal threats from the King estate in the future will be more willing to stand up for their rights.

Comments

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