‘We Shall Overcome’ copyright case proceeds

A US-based non-profit organisation’s copyright case centring on the civil rights movement’s unofficial anthem “We Shall Overcome” looks to be set for trial.

Judge Denise Cote at the US District Court for the Southern District of New York rejected a motion (pdf) to dismiss the case concerning copyright, but granted the motion on other state law claims.

The suit, which challenged copyright to the song, was originally filed by the We Shall Overcome Foundation.

Music publisher The Richmond Organization (TRO) and its subsidiary Ludlow Music, which filed a motion to dismiss part of the case, have owned copyright for the song at the US Copyright Office since 1960.

“We Shall Overcome” is a song closely associated with the civil rights movement during the 1960s.

In April, WIPR reported that the We Shall Overcome Foundation claimed that TRO and Ludlow Music had wrongfully collected copyright fees for use of the “We Shall Overcome” track since 1960.

The We Shall Overcome Foundation is a faith-based non-profit organisation dedicated to the empowerment and development of poor and marginalised people worldwide.

The class action lawsuit was filed at the US District Court for the Southern District of New York.

More than 50 years have passed since TRO and Ludlow purportedly copyrighted an African-American song, the complaint said. It added that the defendants either have silenced those wishing to perform it by refusing to grant a licence or by unlawfully demanding licensing fees.

The lawsuit added that the African-American song is an adaptation of an earlier spiritual work from the late 19th or early 20th century that has “exactly the same melody and nearly identical lyrics.”

In the lawsuit, the We Shall Overcome Foundation contended that the lyrics to the first verse of the song are “virtually indistinguishable” from a song in the public domain.

TRO and Ludlow then brought a motion to dismiss the portion of the amended complaint that challenged their copyright to the lyrics of the song’s first verse. They also filed several state claims, including breach of contract.

The parties argued that their possession of copyright registrations is prima facie evidence of the validity of their copyright in the song and that changes made to the lyrics in the first verse from the version in the public domain “reflect sufficient originality to warrant a copyright in the derivative work”.

In her ruling, Cote denied TRO and Ludlow’s motion to dismiss the copyright claims.

Cote added that “the plaintiffs have plausibly alleged that the lyrics in the first verse of the song were copied from material in the public domain”.

She added that “resolution of the issues of originality and ownership will require discovery and a more developed record. Whether the plaintiffs will prevail awaits a decision through summary judgment or at trial”.

Isaias Gamboa, founder of the We Shall Overcome Foundation, told WIPR: “I’m encouraged by the judge’s ruling and I believe that the outcome will be positive and reflect the truth that has been, I would say, not revealed for more than half a century.

“Ultimately, hopefully it will allow others to come out of the shadows and present their cases for copyright that has been co-opted by very powerful publishing companies over the years that by virtue of their power and influence have remained unchallenged.”