It’s crazy that a standard tune such as “Happy Birthday” sung by millions worldwide in a multitude of languages could actually be claimed “private property” subject to copyright protection.  Now we learn that another famous song, “We Shall Overcome” is also subject to a copyright dispute.

The New York Times has reported extensively on the origin of “We Shall Overcome,”  which has served as the unofficial anthem of the civil rights movement since the early 1960s. It was sung in 1963 on the March on Washington and in 1964 during the Mississippi Freedom Summer campaign but, according to the New York Times, it has its roots in the antebellum period song “no More Auction Block” sung by slaves. By the late 19th century black churchgoers embraced a similar song, “I’ll Be Right.” Charles Albert Tindley published a similar hymn titled “I’ll Overcome Some Day, “in 1900. The songs were not confined to black churches but in the early 20th century became the hallmark of labor movements among southern activists and mine workers.

You may ask how ownership of a song with deep historical roots can pass to private individuals?  Quite purposefully, Pete Seeger and several other musicians filed copyright registrations for the modern version (a derivative work, using copyright parlance) of “We Shall Overcome” in the early 1960s.  The registrations later passed to  the Ludlow Music and The Richmond Organization, both music publishing companies.  Outraged by a claim of private ownership of the song, the We Shall Overcome Foundation (WSOF) in April 2016 filed a class-action suit against the two publishing companies.  In the complaint, WSOF asserts that the defendants do not own a valid copyright and requests the court to declare that the song is dedicated to public use and is in the public domain. The plaintiff also demands monetary damages and restitution for unlawful licensing fees that the defendants have improperly collected from the class members.

The story behind the complaint is an interesting one.  WSOF was producing a documentary, which included a performance of “We Shall Overcome” and sought to obtain copyright clearance from the defendants. According to the complaint, a representative of the defendants responded that “We Shall Overcome” is a “difficult song to clear” and that they required time to review the recording that WSOF intended to use. Ultimately, after several email exchanges, the defendant refused to clear the song for performance in the documentary, stating

[a]s previously mentioned, permission is not granted for this use. I will continue to follow up with our historians. However, until further notice we do not grant permission for the use of WE SHALL OVERCOME in the documentary.

WSOF argues that Pete Seeger’s variant of the song contains only minor changes to the original such as changing “We will overcome” to “We shall overcome.”  It asserts that such changes are not deserving of copyright protection because they lack originality.  In the court’s latest ruling, it refused to dismiss the case for just that reason.  The judge ruled that “issues of originality and authorship will require discovery and a more developed record.”

The lawsuit is interesting, not only because of the copyright principles at issue, but because it is one of a minority of copyright cases, where the Plaintiff is not seeking an income stream from an alleged rightful ownership of the work but, rather, is seeking to release a cultural icon from bondage so the public may enjoy its use.  We’ll keep you posted.

— Adam G. Garson, Esq.