Publisher Seeks to Overcome Copyright Suit Over Famous Civil Rights Song

The lawsuit seeks to put "We Shall Overcome" in the public domain and make defendants return fees collected for licensing the song.
Roland Scherman/National Archives
Folk singer Joan Baez

"We Shall Overcome" is the most powerful song of the 20th century and does not belong in the public domain, according to a Friday court filing. 

A documentary filmmaker, suing as the We Shall Overcome Foundation, filed a putative class action in April against Ludlow Music and the Richmond Organization, seeking a judgment that the song isn't copyrightable and that licensing fees collected for it must be returned. The lawsuit came after the filmmaker was denied a synch license to use an a cappella version of the song. In June, Lee Daniels' The Butler entered the fray, joining the suit because defendants had tried to charge $100,000 for use of the song in that film. 

Plaintiffs argue "We Shall Overcome" is an adaptation of an African-American spiritual which is virtually identical to a 1948 composition called "We Will Overcome," the copyright for which expired in 1976. Therefore, they argue, that's when the unofficial anthem of the civil rights movement became part of the public domain.

Ludlow and Richmond attorney Paul LiCalsi, who filed a memorandum in support of a motion to dismiss the lawsuit, notes the unique nature of the suit.

"The case at bar provides a somewhat-unusual twist to the typical copyright infringement case in that the Complaint does not allege (at least explicitly) that We Shall Overcome infringed any previous copyright, but rather that the Song is indistinguishable from public domain predecessors," LiCalsi writes.

The issue at hand is whether the copyrighted version is "sufficiently 'original' and distinguishable" — which he argues the court can decide as a matter of law.

"The 1960 and 1963 registrations of the song We Shall Overcome copyrighted the classic arrangement and new words composed by the authors Zilphia Horton, Frank Hamilton, Guy Carawan and Pete Seeger," LiCalsi writes. "These copyright registrations were for derivative works. The authors and Ludlow have always acknowledged that We Shall Overcome incorporated rich and important traditional elements from the public domain."

LiCalsi argues "We Shall Overcome" is not the same as "We Will Overcome." The motion includes this side-by-side comparison of the lyrics:

While the lyrics are similar, LiCalsi says the proof is in the pudding, and the author's simple but crucial changes are why "We Shall Overcome" became the "iconic song of the Civil Rights Movement" instead of "its public domain predecessors."

LiCalsi argues the copyright complaint should be dismissed for failure to state a claim and each of the state law claims should be dismissed with prejudice because "they are not qualitatively different" from the federal claim. 

"The Complaint does not, and indeed cannot, point to any predecessor version of the Song which is the same as the copyrighted versions of We Shall Overcome from 1960 and 1963," LiCalsi writes. "Nor can Plaintiffs point to any publication prior to 1960 that included the same lyrics as the 1960 copyrighted version of We Shall Overcome."

If any of the claims survives the motion to dismiss, LiCalsi argues damages should be limited to the three years prior to the complaint.