'We Shall Overcome' Overcomes Bogus Copyright Claim -- Officially In The Public Domain

from the overcoming-copyright dept

The same legal team that helped get the song "Happy Birthday" officially cleared into the public domain has done it again with the song "We Shall Overcome." As we wrote about, the same team filed a similar lawsuit against The Richmond Organization and Ludlow Music, who claimed a highly questionable copyright in the famous song "We Shall Overcome." As the lawsuit showed, the song had a lengthy history long before Ludlow's copyright claim.

Last September, the judge made it clear that the song's claimed copyright was on weak grounds, rejecting arguments that key parts of the song were subject to copyright. Apparently, Ludlow Music tried to salvage something out of the wreck by just promising to offer a "covenant not to sue" against the plaintiffs... which the judge said wasn't good enough earlier this month.

So, now the two sides have come to a settlement clearly admitting that the song is in the public domain:

Defendants agree that hearafter they will not claim copyright in the melody or lyrics of any verse of the song We Shall Overcome ("the Song").... Defendants agree that the melody and lyrics of those verses of the Song are hereafter dedicated to the public domain.

This is, obviously, a good result. Though I find it a little tacky that the defendants now want to "dedicate" the song to the public domain, when the truth is the song has been in the public domain all along, and it was only a false copyright claim by the defendants that attempted to hide the fact that it was in the public domain. Also, as with "Happy Birthday," these publishers still got to profit off of years of licensing a song they had no legitimate right to license.

Still, it's good to see yet another song officially in the public domain without any legal dispute over its status. The full dispute isn't over yet, as the plaintiffs are still seeking legal fees, which they very well may get. Now let's see if these same two defendants can be convinced to let go of their bogus copyright claim on Woody Guthrie's "This Land Is Your Land," as they're facing a very, very similar lawsuit over that song too.

Filed Under: copyright, public domain, we shall overcome
Companies: ludlow music, the richmond organization, tro

This Song Belongs To You And Me: Lawsuit Filed To Declare Woodie Guthrie's Classic In The Public Domain

from the we-don't-give-a-dern dept

American folk hero Woody Guthrie famously put the following anti-copyright notices on one of his records once:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do

And yet, his most famous song, "This Land," keeps coming up in copyright disputes. Over a decade ago, we wrote about how the organizations claiming to hold the copyright on that song went after the company JibJab, which had made a clear parody of the song during the 2004 Presidential election. In that case, once the EFF got involved, the case was settled out of court. But as EFF noted back in 2004, part of the reason for the settlement was pretty clear evidence that "This Land" was absolutely in the public domain:

Fact #1: Guthrie wrote the song in 1940. At that time, the term of copyright was 28 years, renewable once for an additional 28 years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music (just performing it is not enough to trigger the clock).

Fact #2: A search of Copyright Office records shows that the copyright wasn't registered until 1956, and Ludlow filed for a renewal in 1984.

Fact #3: Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for "This Land Is Your Land" in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, DC. For those who are not able to visit the Woody Guthrie Manuscript Collection at the American Folklife Archives, we've posted a copy of the document.

This means that the copyright in the song expired in 1973, 28 years after Guthrie published the sheet music. Ludlow's attempted renewal in 1984 was 11 years tardy, which means the classic Guthrie song is in the public domain.

Not much more had come of this until a few weeks ago when some musicians in the band Satorii decided to take the claimed copyright holders to court, asking for declaratory judgment that the song is in the public domain -- while also asking that license fees paid in the past get returned. The two defendants? The Richmond Organization and Ludlow Music. If those names sound familiar, they're the same two organizations at the receiving end of a very similar case over the song "We Shall Overcome."

The filing in this case repeats the arguments that EFF made 12 years ago almost verbatim.

Guthrie published the Song in 1945 with a proper copyright notice, which created a federal copyright in the Song. The copyright to the 1945 publication was not renewed. As a result, the copyright expired after 28 years, and the Song fell into the public domain in 1973.

Despite Guthrie’s 1945 publication of the Song, Defendant Ludlow purportedly copyrighted the Song in 1956. Based on that 1956 copyright, Defendant Ludlow has wrongfully and unlawfully insisted it owns the copyright to This Land, together with the exclusive right to control the Song’s reproduction, distribution, and public performances pursuant to federal copyright law.

For example, on July 23, 2004, Defendant Ludlow’s counsel wrote to counsel for Jib Jab Media, Inc. (“Jib Jab”), regarding Jib Jab’s use of the Song. In that letter, Defendant Ludlow’s counsel asserted that “Ludlow is the exclusive copyright owner of the classic folk song ‘This Land is Your Land’ written by the well-known folk artist Woody Guthrie.” The letter also asserted that Jib Jab’s use of the Song’s melody and “the well-known lyrics ‘This land is your land, this land is my land’ and ‘From California to the New York Island’” infringed Ludlow’s copyright.

Irrefutable documentary evidence shows that Defendants own no valid copyright related to This Land. The popular verses of the Song were first published in 1945, and the copyright in those verses ended no later than 1973 (if not earlier). Defendants never owned a valid copyright to the Song’s pre-existing melody.

The filing includes a copy of the 1945 publication of a version of the song: The filing notes that the melody pre-existed "This Land" and was used in a variety of earlier songs, and thus he has no copyright in the melody -- even though Ludlow claimed (falsely) in its 1956 copyright registration that Guthrie wrote the music (it also failed to note that the song had been published multiple times earlier). Amusingly, of course, in noting the lyrics to "This Land," it's noted that part of one version of the song mocks the idea of private property:

Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn’t say nothing –
This land was made for you and me.

The case makes a pretty strong argument for the song being in the public domain. It seems like there's now this trend of forecefully declaring works in the public domain after years of having someone claim ownership over them. While it's good to finally see some of this stuff officially enter the public domain, it's rather ridiculous that we're all left fighting for a public domain.

Filed Under: copyright, public domain, satorii, this land, woodie guthrie
Companies: ludlow music, the richmond organization, tro

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

from the we-shall-see dept

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...

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