We Shall Overcome was labelled by the US Library of Congress as “the most powerful song of the 20th century”. It was a unifying anthem for the 1940s labour protests and the 1960s Civil Rights Movement led by Dr Martin Luther King, and came to symbolise the spirit of protest.
When back in 2012, the producers of the film “The Butler”, a film based on the African-American Civil Rights Movement viewed through the eyes of a White House butler, approached The Richmond Organisation (TRO) and Ludlow Music Inc, publishers of We Shall Overcome, to licence the rights to the popular protest song, they were met with a demand for $100,000 for the use of “Verse 1” in the film. They eventually agreed to licence a three second clip for a payment of $15,000.
Then in February 2015, the We Shall Overcome Foundation (WSOF), a faith based non-profit organisation which took their name from the song, wanted to include a performance of the first verse of We Shall Overcome, sung ‘a capella’, in a documentary being made about the origins of the song. A representative approached TRO-Ludlow Inc for a quote to licence the synchronisation rights and despite providing on request a vocal sample of the intended usage, WSOF was bluntly refused permission. They were informed in an email that the song was not available for use and permission was not granted and all rights were reserved under US Copyright Law. Denied thus, the WSOF were unable to complete their documentary.
Unmoved by this, or perhaps motivated by the rejection, in June 2016 the WSOF together with Butler Films LLC, filed a class action lawsuit against TRO-Ludlow Music Inc (We Shall Overcome Foundation, et al. v. The Richmond Organization, Inc., et al., No. 16-02725), arguing that the copyright in the defendants’ 1960 and 1963 registrations were not valid and that We Shall Overcome has been in the public domain since 1909. They were seeking a declaration to that effect. The complaint also raised questions about ownership i.e. authorship of the original song, questioning TRO-Ludlow Music’s right to demand and collect fees for a copyright which they did not own and sought damages for everyone who had paid for a licence. A comparison was made with the ‘Happy Birthday’ case. The same law firm who brought those proceedings were representing the plaintiffs.
In their copyright complaint, the plaintiffs argued that We Shall Overcome is an adaptation of an earlier public work We Will Overcome, an African-American spiritual song with near identical lyrics and melody. The first printed reference to We Will Overcome was in 1909 and no copyright existed in the song at that time. The folk singer Pete Seeger is generally credited with changing the lyrics from “we will overcome” to ”we shall overcome” during his renditions in the 1940s.
The lyrics to the 1909 version were:
We ‘will’ overcome,
We ‘will’ overcome,
We ‘will’ overcome some day,
Oh ‘down’ in my heart, I do believe,
We’ll overcome some day.
The defendants however claimed protection on the grounds that Pete Seeger had changed the first verse, altering “will” to “shall” and “down” to “deep”, a change significant enough to amount to a derivative work and capable of protection under US Copyright Law.
We ‘shall’ overcome,
We ‘shall’ overcome,
We ‘shall’ overcome some day;
Oh, ‘deep’ in my heart, I do believe,
We ‘shall’ overcome some day.
The plaintiffs further alleged that in the 1960 application to register the copyright, Ludlow Music Inc filed an application for We Shall Overcome as a derivative work of a (non-existent) original registration “I’ll Overcome” and that verses 2, 3, and 4 were adapted. No copyright registration for verses 1 and 5 were claimed. Similarly in 1963, Ludlow Music, filed another application for We Shall Overcome as a derivative work with new arrangements and words for new verses 6, 7, and 8. No claims were made to register the well known lyrics and melody to verses 1 and 5 which were identical. Part of the plaintiffs’ claim was that “… the defendants cannot claim to own a copyright to those familiar lyrics”.
U.S. District Judge Cote found that the origins of the song remain unknown, possibly dating to an 18th century hymn or an early 20th century African-American spiritual song.
Commenting on the change in the lyrics from “we will overcome” to “we shall overcome”, Judge Cote said that the change was not original enough to qualify for protection. “This single word substitution is quintessentially trivial and does not raise a question of fact requiring a trial to assess whether it is more than trivial … The words ‘will’ and ‘shall’ are both common words. Neither is unusual” Judge Cote ruled, adding “The fact that a trivial change to the lyrics became a part of a popular version of a song does not render that change nontrivial and automatically qualify the popular version for copyright protection”.
The result is that Judge Cote’s ruling places the first and fifth verse of We Shall Overcome firmly in the public domain.
With regard to the plaintiff’s claim to have the 1960 and 1963 copyright registrations declared invalid and fraudulent giving rise to further claims for damages, Judge Cote denied summary judgment saying it would take a trial to resolve those issues.
© George Chin LLB(Hons) 2017