Judge Rules "We Shall Overcome" Verse Not Under Valid Copyright

The win goes to the legal team that prevailed over "Happy Birthday to You."
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"We Shall Overcome," the iconic anthem of the civil rights movement, has itself overcome copyright control. On Friday, a New York federal judge partially granted summary judgment to those seeking to free it from the grips of a publisher.

The lawsuit against Richmond Organization and Ludlow Music came in April 2016 from the same legal team at Wolf Haldenstein who previously got Warner/Chappell to back off from ownership claims over "Happy Birthday to You." In the complaint, the plaintiffs — which would later include the producers of Lee Daniels' The Butler — alleged that the song emanated from an old African-American spiritual before being picked up by folk singer Pete Seeger and others in the 1940s labor protest movement. They contended that "We Shall Overcome" was in the public domain, and that producers shouldn't have to pay up to $100,000 to license it in films and television shows.

In response to the lawsuit, the defendants pointed to 1960 and 1963 copyright registrations and argued they were entitled to own their derivative works as sufficiently original and distinguishable from what came earlier. Additionally, the publishers noted how licensing revenue on the anthem went to support art and research projects in the African-American community as well as the preservation of Civil Rights Movement documents.

The summary judgment motions went to such issues as the presumption of validity afforded copyright registrations as well as what constitutes originality. Evidence presented including Seeger's thoughts on the song's authorship and expert reports.

In today's decision, U.S. District Judge Denise Cote writes that Richmond and Ludlow may not rely on the presumption of validity because plaintiffs "have offered more than sufficient evidence to rebut the presumption. They have shown that the Defendants' 1960 and 1963 applications for a copyright in the Song were significantly flawed."

Specifically, Cote notes that the copyright applicants didn't identify the original work on which their derivative was based and didn't clearly identify the differences in the words of the crucial first verse of "We Shall Overcome." Nor did the applicants list Seeger, the one who supposedly changed "will" to "shall," as an author.

More critically, the judge concludes that the defendants have not convincingly demonstrated that changes made rose to sufficient originality to merit copyright protection.

"As a matter of law, the alterations from the PSI Version are too trivial," writes the judge, referring to a version published in the 1940s. "A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. As §101 of the Copyright Act teaches, a judgment about modification to an original work must be based on a consideration of the derivative work 'as a whole.' More specifically, the changes of 'will' to 'shall' and 'down' to 'deep' and the melodic differences in the opening measures and the seventh measure, do not create a distinguishable variation. These differences represent 'variations of the piece that are standard fare in the music trade by any competent musician.'”

Cote adds, "The record shows that the listed authors of the Copyrighted Song were well aware of the historic and to them venerable roots of the Song. They sought to copyright the Song in order to protect it from undesirable commercial exploitation. In opposing this motion, the Defendants emphasize their own and the listed authors’ virtuous motives. But, unless Verse 1/5 qualifies as a derivative work under the ordinary application of copyright law, that protection is unavailable for that verse. These principles regarding the creation of copyright protection for derivative works apply equally whether the original work is humble or distinguished and whether it is noble or quite the opposite. The gap in the proof of originality cannot be filled by good intentions."

The judge defers judgment on other issues including who really authored the song and whether there was a fraud on the Copyright Office. A trial may be in order to settle those aspects, which would pertain to whether the copyright as a whole is invalidated and what sort of damages would be awarded. For now, the big outcome of today's ruling (read here) is that the much-sung first verse of "We Shall Overcome" appears to be outside of anyone's copyright control.

Says plaintiff attorney Randall Newman, "We are gratified that the Court has put an end to this charade and given this iconic Civil Rights song back to the public."

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