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We Shall Overcome is public domain in the US after copyright case settled

By | Published on Tuesday 30 January 2018


The iconic protest song ‘We Shall Overcome’ has been confirmed as a public domain work in the US after the long running legal dispute on the copyright status of the piece was settled last week.

A lawsuit was filed over the copyright status of ‘We Shall Overcome’ in April 2016. The people behind the lawsuit argued that the song was 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.

Music publisher Ludlow Music – which registered the song with the US Copyright Office in the early 1960s – reckoned that the work was still in copyright.

However, versions of the song 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 argued 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 controlled.

With the most famous first verse of the song, there were some nominal differences between the version published in the 1940s and the version registered in the 1960s. In particular, the key lyric evolved from “we will overcome” to “we shall overcome”. The question for the court considering the case, then, was whether or not those changes were sufficient to say that the 1940s and 1960s versions were two separate songs protected by separate copyrights.

Last year, in summary judgement, a judge ruled that they were not, and therefore at least the first verse of the song was public domain. Other questions remained over the wider song, however, which the judge said would require a full trial to consider. That was scheduled to take place next month.

However, a settlement has now been reached in which Ludlow Music has declared that both the melody and lyrics of ‘We Shall Overcome’ are “hereafter dedicated to the public domain”. Which means third parties wishing to make use of the work in the US will no longer require a licence or need to pay any royalties.

It’s fair to say that Ludlow, perhaps unsurprisingly, isn’t especially pleased with the outcome of the case. After noting that an educational charity was the main beneficiary of royalties generated by the copyright, it also argued that a song very closely associated with the civil rights movement in the US would no longer have a protector.

According to The Hollywood Reporter, the music firm said in a statement: “Now, given its more limited copyright protection, any individual, corporation, or advertising agency may use the song’s words and melody in any manner they wish, including inaccurate historical uses, commercials, parodies, spoofs and jokes, and even for political purposes by those who oppose civil rights for all Americans. This is the saddest result of this case. In this era of hate and divisiveness, now more than ever, ‘We Shall Overcome’ should be a fully protected work and cherished as a national treasure”.

The lawyers who led on the other side of the dispute were pleased with the outcome, which they reckon is very much for the common good. THR quotes attorney Randall Newman as saying: “We are pleased that this settlement resolves the litigation and puts the melody and all verses of the iconic song ‘We Shall Overcome’ into the public domain where it belongs. The defendants can no longer prevent how this song will be used in the future”.