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First verse of We Shall Overcome public domain, says US judge

By | Published on Tuesday 12 September 2017


The first verse of the iconic protest song ‘We Shall Overcome’ is definitely public domain in the US. This follows a summary judgement on part of the copyright dispute in relation to the work that has been strolling its way through the American courts for more than a year now.

As previously reported, a lawsuit was filed over the copyright status of ‘We Shall Overcome’ in April last year. The people behind the lawsuit argue that the song is no longer protected by copyright in the US, and in a bid to prove that fact they hired the lawyers who previously¬†successfully argued that ‘Happy Birthday’ was also out of copyright Stateside.

One of the defendants in the case was Ludlow Music, which registered the song with the US Copyright Office in the early 1960s. However, versions of the work had been published prior to that date, most notably by an organisation involving folk singer Pete Seeger in the 1940s. Seeger is very much associated with the song, and amended and added to it over the years, though the actual origins of the original version are not known.

Either way, by US copyright rules of the time, any copyright that existed in the 1940s published version expired sometime ago. However, Ludlow Music argues that the version filed with the Copyright Office in the 1960s was an evolution of the song and therefore a derivative work subject to a separate copyright. Which it controls.

However, last year’s lawsuit argued that there were only nominal differences between the most famous first verse of the 1960s version and that which was published in the 1940s, meaning – for that verse at least – no new copyright had been created by the registration. Which would mean that verse was public domain.

There are some definite differences between the 1940s and 1960s versions, so the question for the judge was whether or not these differences were sufficient to constitute the creation of a new derivative work protected by a separate copyright. In her summary judgement last week, judge Denise Cote concluded they were not.

She wrote: “The plaintiffs have more than carried their burden on summary judgement to show that verse one of the song lacks the originality required for protection as a derivative work. The burden having shifted to them, the defendants have failed to offer evidence of originality that raises a material question of fact requiring a jury trial”.

Noting that the key difference honed in on by the defence was the change from “we will overcome” to “we shall overcome”, Cote added: “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. Grammatically, both words perform similar functions in a phrase or sentence, as they were here. They can be readily substituted”.

To that end, Cote ruled in the plaintiff’s favour over the copyright status of the first verse: it is public domain.

However, the litigation is not entirely at an end, as there were other elements of the case that Cote said would require full trial. In particular allegations that the 1960s copyright registrations were fraudulent, which could result in the entire version of the song registered at that time being deemed public domain too. Those arguments will need to go before a jury.

Mark C Rifkin, a lawyer working for the plaintiffs, unsurprisingly welcomed last week’s ruling,¬†telling the New York Times: “We are delighted with the court’s ruling today giving this iconic civil rights song back to the public”.

Meanwhile, a rep for the defence, Paul V LiCalsi, added: “We do believe that the changes made to the first verse were significant and iconic, and we are very disappointed in this ruling, which takes the determination away from a jury”.