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IP/Entertainment Case Law Updates

We Shall Overcome Foundation v. The Richmond Organization, Inc.

District court holds that highly recognizable verse of civil rights anthem “We Shall Overcome” is in public domain and that defendant publisher did not have valid copyright in words and melody to derivative work – in part because of lack of originality.

The We Shall Overcome Foundation and Butler Films LLC brought a putative class action against The Richmond Organization, Inc. and its subsidiary Ludlow Music, Inc. to challenge defendants’ copyright interest in the song “We Shall Overcome,” the iconic American folk song strongly associated with the Civil Rights Movement. The We Shall Overcome Foundation, an organization creating a documentary film about the history of the song, sued defendants after they were denied a synchronization license. Butler Films, the producers of the 2013 civil rights period piece “The Butler,” later joined the suit after they paid $15,000 for a license to use no more than 10 seconds of the song. Plaintiffs sought a declaratory judgment that defendants’ two copyrights on the song do not cover the melody or the “familiar lyrics” found in the first verse of the song because those are in the public domain. They also alleged that defendants fraudulently obtained their copyrights in the song and that those copyrights had been forfeited when the song was published without the required copyright notice.

The district court granted plaintiffs’ motion for partial summary judgment holding, as a matter of law, that defendants’ lyrical alterations from “will” to “shall” and “down” to “deep” were not sufficiently original to merit copyright protection as a derivative work. While no one knows the exact origins of the song “We Shall Overcome,” the decision principally refers to a 1940s version used as a protest song by laborers and the Civil Rights Movement. The lyrics and music for the song were later published in a 1948 magazine by an organization founded by American folk singer Pete Seeger. In 1960 and 1963, defendants filed copyright registrations for “We Shall Overcome” as previously unpublished derivative works, collectively covering eight verses of lyrics, with the first and fifth verses consisting of the now-familiar lyrics of the song.

As an initial matter, the court, relying on recent Supreme Court precedent, stated that defendants bear the burden of demonstrating the validity of their copyright in this declaratory judgment action, noting that “if the burden of persuasion shifted to the Plaintiff in a declaratory judgment suit, that litigation would have failed to achieve its object: to provide an immediate and definitive determination of the legal rights of the parties.”  While defendants’ opposition motion relied on their certificates of copyright registration, the court explained that plaintiffs have shown that defendants’ two applications for copyrights were “significantly flawed,” and thus defendants could not rely on a presumption of validity. The copyright applications (1) did not identify the original work on which their derivative was based; (2) did not clearly identify the differences in the words of the first verse; (3) did not list Seeger as an author, even though defendants argue he was the one who changed “will” to “shall”; and (4) evidenced the strong similarity between verses in the derivative work’s 1940s antecedent without a sufficiently original contribution.

The court cited copyright principles that hold “special caution is appropriate when analyzing originality in derivative works” and that when “an underlying work is in the public domain, a copyright in a derivative work provides protection only for the increments of expression beyond what is contained in the public domain work.” The court explained that as a matter of law, the alterations of a 1940’s version of “We Shall Overcome” and defendants’ version were too trivial because “a person listening to” the verse would hear the “same song” because changing “will” to “shall” and “down” to “deep,” among other things, “do not create distinguishable variation” but are “standard fare in the music trade by any competent musician.”  To support this reasoning, the court pointed to evidence submitted by defendants, where Seeger explains “there were several subtle variations in the way ‘We Shall Overcome’ was being sung at the time” and each was “a reflection of a folk song evolving and shifting with its use in the community and its performance by many different singers.”

While defendants also pointed to their “virtuous motives” in copyrighting a historic song in order to “protect it from undesirable commercial exploitation,” the court noted that the “gap in the proof of originality cannot be filled by good intentions.”  The court also rejected defendants’ additional argument that their changes to the song were not trivial because their version increased the original song’s popularity and facilitated the song’s widespread adoption, calling it a flawed post hoc ergo propter hoc (after this, therefore because of this) argument because defendants did not provide any evidence to show their version was sung during the civil rights movement and that “popularity does not equate originality.”

The court did not decide issues regarding fraud of the Copyright Office, issues of authorship and the divestment in the copyright, leaving these issues for trial.

Summary prepared by David Grossman and Peter Pottier

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