MLK Actually Wasn't A Fan Of Chrysler, And Fair Use Makes This Super Bowl Ad 50 Times Better

Here’s to hoping that next year’s Super Bowl commercials stay away from using icons like MLK to sell their wares.

This is the story of a controversial Super Bowl commercial. Plus a little Martin Luther King, Jr. followed by Twitter outrage. Plus copyright term, licensing, and fair use issues rolled into one.

Let’s rewind to Sunday’s Super Bowl. While there’s always at least one ad that stirs up a bit of controversy, the most criticized one this year was undoubtedly the commercial by Chrysler, using Martin Luther King, Jr.’s words to sell, well, its Ram truck. Outrage quickly spread on Twitter, with the general consensus being summed up well by this tweet: “How many people are involved in the production of Super Bowl ad, and how did all of them think ‘MLK loves Dodge trucks’ was good?” And what I love best about this story is that, crazy as it sounds, there are actually multiple copyright dimensions to it.

Putting aside the wisdom of using an icon like MLK’s words from a sermon to sell a truck (no, seriously, I really do want to know just how many people were involved in this ad and how on earth it made it past the brainstorming phase), the only way Chrysler gets to use his words in the first place is if the copyright holder to MLK’s works allowed it. Remember, copyright in the United States lasts for eternity minus one day the life of the author plus 70 years. In other words, the King estate chooses who can use MLK’s words, and in this case, blessed its use in the commercial because Chrysler was willing to pay who knows how much money.

By the way, it’s not the first time the King estate has licensed MLK’s speeches for use in commercial advertisements; a 2013 blog post (using the “I Have a Dream Speech” to illustrate the need for copyright reform) reminds me that MLK’s words have also been used to sell mobile phones (apparently you have AT&T to thank for that one). The King estate and Chrysler even defended the ad, making it clear that Chrysler worked with representatives from the estate and sought approval, which was likely a prerequisite in the licensing. While the King Center and Bernice King, MLK’s youngest daughter, disavowed involvement in the approval process, it’s worth noting that the operation that handles licensing is located on the King Center premises, the Center refers licensing inquiries to it, and that some of the funds from licenses go back to the King Center.

Of course, it’s not like the King estate licenses MLK’s words to just anybody or for just any old use. In fact, the estate is notorious for aggressively enforcing its copyrights. Academy Award Best Picture Nominee Selma paraphrased MLK’s words because it was unable to secure licensing rights; the estate had already licensed the rights to MLK’s speeches for another film. MLK’s estate sued the newspaper, USA Today, for publishing the full text of the speech. It sued documentary films for using MLK’s speeches. To recap, using MLK’s words in the newspaper or to make a film about civil rights is a no go, but using it to sell a truck is totally fine by the estate. And the only reason this is true — the only reason it’s still an issue 50 years after MLK died — is because of the lengthy term of copyright.

Copyright term is too long, blah blah blah. But wait! The story gets even better, with another copyright twist! The irony of Chrysler’s choice of sermon is not to be missed. While the excerpt used by Chrysler talks about service, in a different part of that same sermon, known as the “Drum Major Instinct” sermon, MLK criticizes car advertisers and the commercial culture. He even calls out Chrysler by name:

Now the presence of this instinct explains why we are so often taken by advertisers. You know, those gentlemen of massive verbal persuasion. And they have a way of saying things to you that kind of gets you into buying . . . In order to make your neighbors envious, you must drive this type of car . . . And you know, before you know it, you’re just buying stuff . . . It often causes us to live above our means. It’s nothing but the drum major instinct. Do you ever see people buy cars that they can’t even begin to buy in terms of income? You’ve seen people riding around in Cadillacs and Chryslers who don’t even earn enough to have a good Model-T Ford. But it feeds a repressed ego.

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So, naturally, someone (Nathan J. Robinson) took the controversial Super Bowl ad, but replaced the original audio — highlighting the importance of service — with the above portion of the sermon. It is awesome. It is also a textbook example of fair use: criticism, and a pretty clever one, at that.

The video was taken down after supposedly being flagged by YoutTube’s Content ID system, an automated system designed to remove infringing works. Naturally, the takedown of the video only elevated its status, though, as the video continued to be reposted. The original copy of the mashup video was later restored, which is the correct result since it’s so obviously a fair use.

Here’s to hoping that next year’s commercials stay away from using icons like MLK to sell their wares, and instead stick to the use of Clydesdales, frogs, and puppies.


Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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