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83 i shouldn’t have to violate federal law to give a paper at a major history conference. The plan was to present my work on how copyright law had been used to prevent and allow use of civil rights movement images, and to what end, as part of a panel at the annual meeting of the American Historical Association. I ended with a mention of the 2001 television commercial for Alcatel Americas (the domestic arm of a French company that builds voice and data networks), in which the special effects team from Industrial Light and Magic—the wizards that brought us Star Wars—took footage from the 1963 March on Washington and digitally removed all the participants in the march from the National Mall. Everyone is gone except Martin Luther King, Jr., who is shown at a podium giving the “I Have a Dream” speech to a reflecting pool.1 This controversial ad—which was made with the permission of the King estate—must be seen to be believed . But how could I get my hands on the commercial? I couldn’t find it in any archive, and there was no clear means by which I could request access to it from the company. Furthermore, such a request might very well be refused, given the level of negative publicity the ad had received. Despite all these challenges, I still managed to find a copy of the commercial—via YouTube. A grainy low-resolution version of the Alcatel advertisement is (as of this writing) available on YouTube, compliments of the AdClub of Boston—who uploaded a copy of it as an example of the quality advertising work coming out of Arnold Worldwide, the agency that created the spot for Alcatel.2 Could I show the video via YouTube during the presentation? No. Although the panel members assumed that there would be wireless Internet access available in the conference center, the signal was spotty at best. I could describe the ad, as I’ve done here, but I couldn’t help gail drakes Who Owns Your Archive? Historians and the Challenge of Intellectual Property Law 84 gail drakes but feel that my description would never make my point as effectively as would evidence of the authorized erasure of the activists, organizers, and everyday people that made the civil rights movement possible. So in an act that was possibly a violation of U.S. copyright law and probably a violation of YouTube’s “Terms of Use,” I used a software program that allowed me to download the video from the site, and I screened it at the end of my presentation .3 Several members of the audience gasped audibly as they saw the image of King standing at the front of the empty Mall. This essay highlights just a few examples of the friction between historical scholarship and intellectual property (ip) law, drawing on my own research on the construction of contemporary African American historical memory. What is the connection between the two? It’s a fair question. Of all the clauses in the U.S. Constitution that have been vigorously debated for their significance to the lives of black people in the United States, I recognize that the so-called copyright clause—tucked in the list of congressional powers just after the authority to create post offices and a little before the responsibility to punish piracy on the high seas—is rarely among them.4 But it might be time for that to change. I would argue that for African Americans , among whom the ability to find and share information about their collective past has been an ongoing struggle, the fate of the “cultural commons ” is an issue worthy of concentrated attention. What are the connections between ip law and the work of historians more generally? They are more extensive than any of us might think and become even more relevant for scholars of contemporary history. Access to the surviving traces of the past is at the heart of historical research. Threats to that access in the United States have taken many forms, from poorly indexed collections in underfunded archives to government reluctance to grant access to documents related to controversial moments in the nation’s history. But the last decades of the twentieth century saw the growth of a somewhat unexpected threat: the utilization of copyright and other ip laws to assert private ownership of historical materials to regulate (or refuse) use of materials. During this time, more and more...


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