04/03/2013 04:48 pm ET Updated Jun 03, 2013

There's an Extra Charge for That

The 45th anniversary of Dr. Martin Luther King, Jr.'s assassination comes on the heels of a somewhat minor controversy surrounding the use of his name -- or rather, the licensing of his name -- for the foundation that raised the money for the King Memorial on Washington DC's National Mall.

I say minor because the important thing to keep in mind is that Dr. King's monument is erected -- it's finished, it stands. Sure, there were payments made to the King children's company (King, Inc.) for his likeness and permission to etch a handful of his words in the stone, but what has to matter here is the end result: an historic public recognition of the work and sacrifice of legions of dedicated freedom fighters as represented by the visage and words of Dr. King.

The King family doesn't want the foundation to continue using King's good name, because they haven't paid for it on an on-going basis.

Some bristle at this, arguing Dr. King is a public figure. He belongs to all of us. However, there is a difference between right of privacy (which is to a substantial degree forfeited by people who step onto the public stage) and the right of publicity, the value of which really only exists because of an individual's time in the limelight. The King family seems to feel they have a right to profit from the publicity value this non-profit group (formerly the Martin Luther King Jr. Memorial Foundation) will gain from the continued use of King's name.

Capitalism in action. And why stop there? I can point King, Inc. to hundreds of elementary schools around the country to which they should be sending cease-and-desist letters. Or better yet, invoices...

Typically, celebrities tend to be quite protective of their right to publicity while most people who are in the public eye from a political standpoint -- elected officials, advocates, civil rights leaders -- tend not to police these matters closely, lest it make them seem petty, greedy, or selfish. The famous exception is Arnold Swarzenegger, who apparently guarded his likeness and "brand" while governor as he'd been taught to while an A-list actor. It's interesting that Dr. King's children perceive their father as more aligned with Arnold Swarzenegger's outlook than, say, Barack Obama's.

Interesting, but still well within their rights. It makes one think, though, does the King family understand the impact of negative publicity as well as they seem to have a grip on the economics of publicity licensing? The general theme of this news story -- the foundation is being forced to change its name -- has an effect on how the remaining King family is perceived.

But the truth is the Martin Luther King Jr. Memorial Foundation isn't being forced to change its name; it's making a strategic decision that the name isn't worth the price they'd be charged. They will start calling themselves The Memorial Foundation to avoid either paying out or defending themselves from accusations of copyright infringement.

There is, however, a trustworthy First Amendment end-around for the repurposing of copyrighted material called "fair use." Fair use is a defense against copyright infringement that can be employed, among other ways, by invoking its use as "criticism and commentary."

Deployed properly, fair use can help the foundation keep the civil rights icon's name without footing the associated bill. So, in the spirit of fair use, if the business cards and letterhead for the new organization haven't been printed up yet, might I suggest this fresh name:

The Group That Can No Longer Call Itself The Martin Luther King, Jr. Memorial Foundation Due to Oppressive Naming Rights Fees

Has a nice critical ring to it, no?