Lawyers Overcome First Challenge In Showing 'We Shall Overcome' Is In The Public Domain

from the sing-it! dept

A year and a half ago, we wrote about how the same team of lawyers who successfully got "Happy Birthday" recognized as being in the public domain (despite decades of Warner Chappell claiming otherwise, and making boatloads of money) had set their sites on a similar fight over the copyright status of the song "We Shall Overcome." There were a lot of details in the original lawsuit that we wrote about -- all suggesting very strongly that the song "We Shall Overcome" was way older than the copyright holder claimed, and it was almost certainly in the public domain.

There's been some back and forth in the case, but a new ruling on summary judgment motions effectively says key parts of the song are not under copyright. Specifically at issue is whether or not the first and fifth verse of the song are "sufficiently original" to qualify for copyright. And here, Judge Denise Cote says "nope." The verse in question is probably the part of the song you know:

We shall overcome,
We shall overcome
We shall overcome some day
Oh deep in my heart I do believe
We shall overcome some day.

Here, basically no one denies that there are extraodinarily similar songs that predate the 1960 and 1963 copyrights. The real question is whether there was some sort of substantial difference in the new copyrighted versions from the original -- enough to grant a new copyright. There's a LOT of history that the ruling digs into, and I'm not going to repeat it all here. Suffice it to say it appears that those registering the copyright were well aware that they were registering the copyright on a song that had been around for ages. Pete Seeger, who is on the copyright -- but apparently asked to have his name taken off later (which never happened, and it's now revealed that others hoped he would "forget" he asked about it) -- has said many times that the song was much older. The admission is that they filed for the copyright to prevent the song from being commercialized (which is, in some ways, kind of the opposite of the purpose of copyright, but...). And that's copyfraud. That's not the purpose of copyright and filing for such a registration is not supposed to be allowed.

Here, the court doesn't reach a decision on whether or not the registration was fraud on the Copyright Office -- that issue may move on to trial. However, the judge does make it clear that the copyright here doesn't seem legit. Specifically, in this case, the question being decided is who has the burden here. The holders of the copyright wanted to force the plaintiffs to prove that the copyright is invalid, arguing a "presumption of validity" in their registered copyright. But the court notes that enough evidence has presented to raise serious questions about the legitimacy of that copyright that the burden falls on the defendants to prove that the copyright (specifically on those two identical verses) is legit:

Without a sufficiently original contribution to Verse 1/5, the Song’s Verse 1/5 does not qualify for copyright protection as a derivative work. This similarity, coupled with the failure to clearly identify the PSI Version of the Song as the Song’s antecedent is also sufficient to rebut the presumption of validity. Therefore, the Defendants may not rest on a presumption that their copyrights are valid and they bear the ultimate burden of showing the validity of those copyrights without the weight added by that presumption.

So that's not a complete "this is in the public domain." But... it's a pretty strong indication of where we're heading.

On a separate note, I'm pleased to see the following discussion on how copyright is not (as some try to argue) some sort of "natural right" or one that "confers absolute ownership.":

The Constitution provides that “Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. U.S. Const. art. I, § 8, cl. 8. This constitutional grant of authority to create a copyright is given in express recognition of the primacy of the public interest. See TCA Television Corp. v. McCollum, 839 F.3d 168, 177 (2d Cir. 2016). “[T]he primary purpose of copyright is not to reward the author, but is rather to secure ‘the general benefits derived by the public from the labors of authors.’” New York Times v. Tasini, 533 U.S. 483, 519 (2001) (Stevens, J., dissenting) (citation omitted). “[T]he authorization to grant to individual authors the limited monopoly of copyright is predicated upon the dual premises that the public benefits from the creative activities of authors, and that the copyright monopoly is a necessary condition the full realization of such creative activities.” Melville B. Nimmer & David Nimmer, 1 Nimmer on Copyright § 1.03[A] [hereinafter “Nimmer”]; Barton Beebe, Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law, 117 Colum. L. Rev. 319, 341 (2017) (“The Framers likely included the Progress Clause both to justify and to limit in some way the extraordinary grant of monopoly rights provided for by the Exclusive Rights Clause.”). As the Honorable Pierre Leval has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990).

That's not necessarily a key point in the ruling, but I think it's important to remind some people of this fact, since it's one that's frequently confused by copyright system supporters.

Either way, it's worth reading the full ruling. This is not a complete victory, but it's a good start. In the long run, it certainly seems likely that the barrier of a fake copyright on "We Shall Overcome"... shall be overcome.

Filed Under: copyright, pete seeger, public domain, we shall overcome

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