Man bites dog: MLK estate exercises good IP judgment

The Atlanta Journal-Constitution has a fascinating report on a web site called martinlutherking.org. Contrary to what the domain name might suggest, the site is no tribute to the slain civil rights leader; rather, reports the AJC, "The site, martinlutherking.org, is run by a white supremacist group called Stormfront, described by one watchdog organization as the largest 'hate group' online. It has used King’s name for its Web address since 1999." The site -- which appears near the top of Google search results for "martin luther king" -- features various attacks on MLK's character. All of which is odious, if not particularly newsworthy.

What is newsworthy, however, is that King's heirs and the Atlanta institution charged with carrying on his legacy have declined to sue over martinlutherking.org:

In another interview last week, [Isaac Newton Farris Jr., King’s nephew and head of the nonprofit King Center in Atlanta] said there isn’t much the King family can do about the Web site, in part because it’s an issue of free speech.

“You can’t stop people from having opinions,” he said. “If people think my uncle was adulterous and didn’t have a Ph.D., we can’t do anything about that. The only thing we can do is stop them from using his name.”

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“Do we want to give this guy the satisfaction?” Farris said. “He hates us, so he’d get a kick out of us burning our resources.”

This reticence is out of character for the King Center, whose efforts to commercialize King's legacy through dubious exploitation of alleged copyright in King's speeches and image, and attempt to block others from using his image in ways that are likely protected by the First Amendment, is downright embarrassing. As Public Citizen's Consumer Law and Policy Blog puts it:

[T]he 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.

Despite the estate's apparent discretion here, I'm still a bit nervous that the King Center hasn't come totally to its IP senses. The AJC quotes Farris as saying:

“You can’t stop people from having opinions,” he said. “If people think my uncle was adulterous and didn’t have a Ph.D., we can’t do anything about that. The only thing we can do is stop them from using his name.”

In this case, Farris said, the Stormfront Web site, which includes a photo and a drawing of King on its home page, didn’t use King’s name. The Web address isn’t exactly the same as the famous civil rights leader’s because it doesn’t include two letters: “Jr.”

Actually, I doubt that the merits of any claim against martinlutherking.org would turn on the site's use of MLK's precise full name; even racists have a First Amendment right to reference MLK's name to discuss him. Farris also suggests that the King Center could sue the site for defamation:

Farris, of the King Center, said people are free to make claims of philandering and drunkenness about his uncle. “Maybe we could sue, maybe we couldn’t. But there’s a thin line between opinion and slander,” he said.

But even if Farris could prove that the site contains defamatory statements about MLK, the law affords no remedy; Georgia recognizes "no common law right of action for defamation of a deceased person."