Can Lawyers 'Overcome' The Bogus Copyright On 'We Shall Overcome' And Free It To The Public Domain?

from the we-shall-see dept

Fri, Apr 15th 2016 11:40am — Mike Masnick

Earlier this year, after a bit of a roller coaster ride of a legal fight over the copyright status of the song "Happy Birthday," the two key parties finally reached a settlement that declared the song in the public domain. While many news reports had earlier claimed that the judge in the case had done the same, that wasn't really true. The judge simply declared that Warner Chappell did not hold the copyright, leaving it an open question as to whether or not anyone else did -- and some quickly raised their hands to claim the copyright.

Either way, the legal team that helped achieve this eventual victory has apparently decided to go for it again. Representing a group calling itself the We Shall Overcome Foundation (WSOF), they are claiming that The Richmond Organization (TRO Inc.) and Ludlow Music are falsely claiming copyright over the famous civil rights anthem "We Shall Overcome," because that song is in the public domain. The case has tremendous similarities to the Happy Birthday case. As in that case, the plaintiffs say they're making a documentary about the song. In this case, they sought a license for the song and were denied without explanation. TRO-Ludlow had first told WSOF that the song was "very difficult" to clear and they had to approve any use. WSOF recorded someone singing just one short verse, and then TRO-Ludlow flat out refused, but would not give any further explanation. One of the emails:

As previously mentioned to you WE SHALL OVERCOME is not available for use. Permission for the use of WE SHALL OVERCOME as described in your request is not granted.

No other information is available. TRO-Ludlow Music, Inc. reserves all rights under the United States Copyright law in connection with this usage.

However, the plaintiffs note that the song (and, especially, the verse that was sung in the sample they submitted) matches a song that came from decades before the 1960 copyright filed by Ludlow.

The first known printed reference to “We Will Overcome,” in the February 1909 edition of the United Mine Workers Journal, refers to performances of that song in 1908 and much earlier. The front page of the February 1909 United Mine Workers Journal states: “Last year at a strike [in Alabama], we opened every meeting with a prayer, and singing that good old song, ‘We Will Overcome.”

The lawsuit, by the way, leaves out the fact that many argue the melody at least dates back to the 1700s and was even used by Beethoven in a hymn.

Back to the lawsuit: which also notes that a version of the song was published in a songbook put together by Pete Seeger (who was connected to the song for a long time) in 1948.

While that songbook notes that the song had been around for a while before that, the entire book was registered with the Copyright Office in 1948, and that copyright was not renewed in 1976, meaning it went into the public domain.

The lawsuit also notes that a version of the song was recorded and released by Vanguard Records in 1959 -- again, prior to the 1960 copyright filing by Ludlow. Furthermore, a newer Seeger publication called "Sing Out!" published an issue in early 1960 that had an article with the famed lyrics of the song (and the same one sung in the sample that Ludlow rejected clearances for). It wasn't until after all of that, in October of 1960, that Ludlow finally registered a copyright in the composition. But, as they note, even the registration seems to recognize that there are only thin elements being covered by the requested copyright, as it admits that the registration is for a new melody and harmonization from a previously existing song:

On October 27, 1960, Defendant Ludlow filed a copyright Registration Application (Reg. No. EU645288) for We Shall Overcome as an unpublished derivative work.

Paragraph 3 of the Registration Application required the copyright claimant to list the authors of the musical composition as well as the new matter they contributed to the derivative work. Defendant Ludlow completed paragraph 3 by listing Ms. Horton (deceased) as the author of “New words & music Arrangement”; Frank Hamilton as the author of “New words & music Arrangement”; and Guy Carawan as the author of “New words & music Arrangement”

Paragraph 5(b) of the Registration Application required “a brief, general statement of the nature of any substantial new matter in this version. New matter may consist of musical arrangement, compilation, editorial revisions, and the like, as well as additional words and music.” Defendant Ludlow completed paragraph 5(b) of the Registration Application by stating as follows: “Original registration under title “I’LL OVERCOME”. Melody has been changed. Harmonization wholly original. Verses 2, 3, 4 of lead sheet attached all original.”

There's a lot more background in the lawsuit itself -- including Pete Seeger admitting both that he didn't write the song and (perhaps importantly) that the people who did copyright it in the 1960s did so "to protect it from being turned into an insipid pop song (as happened to 'Wimoweh')." In a book, Seeger also said that the 1960 copyright was filed because his publishers warned him that "Hollywood types" would otherwise grab the song and release a new version like "Come on Baby, We shall overcome tonight," so he was fine with the copyright being filed. Of course, all of that is a basic admission to copyright fraud, which can't be a good thing for TRO-Ludlow today.

Either way, this should be a fairly fascinating case to follow...

308203231-We-Shall-Overcome (PDF)308203231-We-Shall-Overcome (Text)

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Filed Under: copyright, pete seeger, public domain, we shall overcome
Companies: ludlow music, richmond organization, we shall overcome foundation, wsof

16 Comments

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Carlie Coats (profile), 15 Apr 2016 @ 12:04pm

fraudulent copyright claims.
It is my considered opinion that the damages and other penalties for fraudulent claim of copyright should be at least as severe as the corresponding damages and penalties for copyright infringement.

FWIW.
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Mason Wheeler (profile), 15 Apr 2016 @ 12:25pm

Re: fraudulent copyright claims.
You're looking at it from the wrong angle.

It is my considered opinion that the damages and penalties for any crime committed in whole or in part to allow the offender to profit thereby, or to increase their profits in an otherwise-legal dealing, should have as a mandatory minimum 100% of revenue deriving from the illegal act.

Congress could even introduce it with a nice, fancy name: the Crime Does Not Pay act. It would immediately do away with the idea of "slap-on-the-wrist" fines and "cost-of-doing-business fines." When the cost of doing illegal business is all of your tainted revenue, suddenly the incentives realign themselves in a more optimal manner.
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TruthHurts (profile), 15 Apr 2016 @ 12:38pm

Re: fraudulent copyright claims.
Here's what the penalty for fraudulent claims must be.

The work that is claimed to be "harmed" by the supposed copyright infringer is immediately moved to public domain and the copyright is voided for all time with no recourse to recover / reclaim it.

That will shut them up, permanently.
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Anonymous Coward, 15 Apr 2016 @ 12:38pm

Re: Re: fraudulent copyright claims.
That still does not guarantee that fraudulent claims will suddenly become unprofitable.

In the pharmacy industry generic manufacturers will still be sued because the brand maker will still make more money buying the delay a court case will cause the generic mfg even though the brand mfg knows full well they are going to lose the case. They still make $$$ either way.

Someone just needs to go to jail as the ONLY penalty period! There are a lot of CEO's that will suddenly become less willing to break the law when they cannot BUY their way out of it!
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Anonymous Coward, 15 Apr 2016 @ 12:40pm

If the two key parties finally reached a settlement that declared "Happy Birthday" in the public domain but then other people claimed the copyright, is "Happy Birthday" in the public domain or not?
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Anonymous Coward, 15 Apr 2016 @ 12:44pm

fraud is ok if it's for charity, right? /s
In the NPR story about this case TRO-Ludlow defended it's actions by saying that it gives royalties for the song to charity.

http://www.npr.org/2016/04/13/474120870/we-shall-overcome-foundation-wages-copyright-war-ove r-civil-rights-anthem
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Anonymous Coward, 15 Apr 2016 @ 1:34pm

Absolutely disgraceful!
Some things should always and forever be in the public domain.
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Anonymous Coward, 15 Apr 2016 @ 1:53pm

IS WB facing charges of massive conspiracy to commit fraud over this? or is it just another day another slap on the wrist for scamming millions out of people by claiming they owned this song.
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Anonymous Coward, 15 Apr 2016 @ 2:40pm

Abolish Copyright
We shall overcome.
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Anonymous Coward, 15 Apr 2016 @ 2:45pm

Re: Re: fraudulent copyright claims.
No, that's not "angle"... that's called scope. Your view is at a different tangent. Re-read Carlie Coat's posting before embarrassing yourself

Just saying'

Also, your view would need to be 'all laws apply to everyone" or "none is above the law" good luck with that Also money isn't the bee all and end all. What's the matter with you. Mason.
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ysth (profile), 15 Apr 2016 @ 3:49pm

I will be glad to tell what songs I have ever sung, because singing is my business. But I decline to say who has ever listened to them, who has written them, or other people who have sung them." - Pete Seeger
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Whatever, 15 Apr 2016 @ 10:19pm

Nonsense!
If The Richmond Organization is not allowed to hold onto their copyright, no content creator would ever create content for civil rights. For that matter, no one would care about civil rights, because if a company is not allowed to hold onto copyrights on the public's behalf that the public cannot make use of, no one would ever campaign any rights they cannot exercise.

If the above doesn't make sense to you, it's because you're a pirate.
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Stan, 15 Apr 2016 @ 11:56pm

Re: Abolish Copyright
"We Shall Overturrrrrn,
We Shall Overturrrrrn.
We Shall Overturrrrrn some dayyyy..."
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Christenson, 16 Apr 2016 @ 12:15am

Even Pete Seeger censoring with Copyright?
Half a century ago, here is a reformer, "trying to prevent Hollywood from turning famous lyrics into an insipid pop hit"! Isn't this copyright being used to censor a transformative fair use because he didn't like it?

Just wow!
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BernardoVerda (profile), 16 Apr 2016 @ 9:13pm

Re: Even Pete Seeger censoring with Copyright?
"-- including Pete Seeger admitting both that he didn't write the song and (perhaps importantly) that the people who did copyright it in the 1960s did so "to protect it from being turned into an insipid pop song (as happened to 'Wimoweh')."

> Half a century ago, here is a reformer, "trying to prevent Hollywood from turning famous lyrics into an insipid pop hit"! Isn't this copyright being used to censor a transformative fair use because he didn't like it?

You make a fair point
But considering the object example provided, it's hard to decide whether Mr Seeger deserves censure -- or praise.
:-/

Wimoweh, Wimoweh...
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Wendy Cockcroft, 18 Apr 2016 @ 5:59am

Re:
It's not. It's technically an orphan work, which means the copyright rightsholder can't be identified and it's not in the public domain. I.e. it's in licencing limbo.
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