Some songs exist in the public consciousness as more than the sum of their words or notes—representing a movement or idea. One would be hard-pressed to find a song that represents this concept more than the Civil Rights anthem “We Shall Overcome.” While there are certainly contemporary songs that speak to the same important issues, “We Shall Overcome” has been a chorus for protest and struggle for over a century.
The copyright in “We Shall Overcome” is currently owned by The Richmond Organization and Ludlow Music (TRO/Ludlow). The royalties from the copyright have been sent to a trust which is purportedly used to benefit African-American activists.
However, a new lawsuit brought by the “We Shall Overcome Foundation” (WSOF) argues that the copyright on “We Shall Overcome” is invalid and should enter the public domain. They’ve hired the same law firm that brought the lawsuit that led to the “Happy Birthday” song being sent back to the public domain and, on April 12, 2016, they filed their complaint.
WSOF Argues TRO/Ludlow Doesn’t Own “We Shall Overcome”
WSOF alleges in their complaint, among other things, that TRO/Ludlow’s claimed copyright is either invalid or it has previously slipped into the public domain. In order to be valid, a would-be copyright must be original and fixed in a tangible medium. Originality is fairly low standard, requiring only minimum creativity. For example, a creative arrangement of phone numbers in a telephone book would be enough to qualify. Fixation only requires you to store your work in a medium that can be perceived, reproduced, or otherwise communicated.
Today, copyright protection attaches as soon as you place an original work in a fixed medium—allowing you to stop people from using your work without permission and sue them for actual lost profits based on their actions. Registration provides you with a presumption of validity for your copyright and the ability to sue for statutory damages—which nearly always exceed your actual loss. However, for works created prior to 1977, publishing your work without a copyright notice or registration sent your work straight into the waiting hands of the public. The same was true of improper registration, and this is what WSOF argues happened.
History of “We Shall Overcome’s” Copyright—Round 1
The history of the song in question is a convoluted one. The factual allegations about that history in WSOF’s complaint seem to be supported by scholarly research. Although the lawyers for TRO/Ludlow will likely, and maybe properly, beg to differ.
The core lyrics to “We Shall Overcome” are identical to an African-Amercian spiritual over a century old. The first known published reference to the song’s lyrics come from a newspaper all the way back in 1909. It was used as a protest song by members of a tobacco union in the 1940s.
In 1948, the lyrics and melody were published in a periodical called “People’s Songs.” The song was contributed by Zilphia Horton, who stated in an introduction of the piece that she was not the author of the piece and that the song was taught to her by members of a tobacco worker’s union. The issue of “People’s Songs” was registered with the Copyright Office. Its copyright expired in 1976.
WSOF’s complaint states that “We Shall Overcome” was mentioned in an article, heard in a recording, and registered with the Copyright Office twice before October 1960.
Then, in October 1960, enter Ludlow Music. Ludlow filed a copyright, not for the song itself, but for a derivative work of “We Shall Overcome.” A derivative work is an original work based off of an existing work. In the registration, Ludlow claimed three additional verses to the original song as well as an unspecified change to the melody. The copyright registration cited Zilphia Horton—at that time deceased—as the author of the work. As the original work, the registration cited “I’ll Overcome.” There was no actual registered work called “I’ll Overcome” when Ludlow registered its copyright. WSOF alleges that this was to create ambiguity as to the actual source because Ludlow didn’t receive permission from the original author of “We Shall Overcome” to make their derivative work.
In the few years immediately following their registration, WSOF alleges that Folkways Records—a member of TRO along with Ludlow—published lyrics to, and recordings of “We Shall Overcome” three separate times. These publications included liner notes which provided the majority of the lyrics Ludlow said they added. These lyrics were all published without any copyright notice, which would place them in the public domain and divest Ludlow of their derivative copyright.
WSOF argues that Ludlow’s copyright is invalid in the first place due to its lack of originality and failure to follow registration formalities. If the copyright is valid, WSOF says that the majority of the copyright has been brought to the public domain by later publications of the original work.
A Public Anthem Kept From the People?
Even if WSOF’s allegation are all true, there is still a possibility that TRO/Ludlow does indeed own a copyright on at least some of the additional lyrics and the specific claimed arrangements. However, that is not what TRO/Ludlow has asserted and collected royalties for in the past.
A derivative copyright does not grant protection against others using the original work it is derived from. However, TRO/Ludlow has allegedly used their copyright to collect royalties on the original song lyrics as well. They’ve also used their copyright to prevent others from using the song “We Shall Overcome.” In fact, Pete Seeger has stated that the very reason they sought their copyright in the first place was to prevent pop music versions of the song from popping up.
This lawsuit is far from over, TRO/Ludlow has not even responded to the allegations made by WSOF. They will certainly dispute many of the facts that WSOF claims to be true. Donating the royalties from “We Shall Overcome” to worthy causes is also hard to argue with. However, if TRO/Ludlow is misusing its copyright, it is keeping a classic anthem from the public while profiting from its misuse. While it’s hard to imagine a song with over a century of history being copyrighted over 50 years after its first appearance in media, we will have to see how this case unfolds.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law