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We Shall Overcome Foundation v. The Richmond Organization Inc.

Following resolution of action challenging copyright protection in iconic protest song “We Shall Overcome,” district court awards plaintiffs $352,000 in attorneys’ fees after applying reductions to $1 million fee request.

Following resolution of action challenging copyright protection in iconic protest song “We Shall Overcome,” district court awards plaintiffs $352,000 in attorneys’ fees after applying reductions to $1 million fee request.

In April 2016, We Shall Overcome Foundation and Butler Films LLC brought a putative class action against The Richmond Organization Inc. and its subsidiary Ludlow Music Inc., challenging defendants’ copyright interest in the song “We Shall Overcome,” the iconic American folk song associated with the civil rights movement. Plaintiffs sought declaratory judgment that defendants’ 1960 and 1963 copyrights in the song do not protect the melody or “familiar lyrics” found in its first verse as a result of their being in the public domain. Plaintiffs also alleged that defendants fraudulently obtained those copyrights and that they had been forfeited when the song was published without the required copyright notice.

In November 2016, the district court dismissed plaintiffs’ state law claims but permitted the copyright claims to continue. Nearly a year later, in September 2017, the court granted in substantial part plaintiffs’ motion for summary judgment, holding that the highly recognized first verse of the song lacked the originality required for copyright protection. (Read our summary of the district court’s September 2017 decision here.) In January 2018, the case concluded in a settlement and a concession by defendants that they would not claim copyright in the melody and lyrics of any verse of “We Shall Overcome,” and that “the melody and lyrics of those verses of the Song are hereafter dedicated to the public domain” (while the arrangements embodied in the 1960s version of the song remained under copyright).

Plaintiffs thereafter moved under Section 505 of the Copyright Act for an award of approximately $1 million in attorneys’ fees, as well as expenses and costs of over $60,000. The court granted plaintiffs’ motion but awarded only $352,000 in fees. It determined that although plaintiffs did not obtain a final judgment on the merits following a trial, they nonetheless qualified as “prevailing parties” under Section 505 because they obtained summary judgment on the merits of their primary claim, and, as part of the settlement, defendants surrendered their right to appeal the summary judgment decision and drastically reduced the scope of their claimed copyright in the song. Plaintiffs’ status as prevailing parties, the court explained, was “not diminished by the few issues on which the defendants ‘prevailed,’” namely divestment and fraud.

Assessing the nonexclusive Fogerty factors — frivolousness, motivation, objective unreasonableness, and considerations of compensation and deterrence — the court concluded that plaintiffs were entitled to fees as prevailing parties. It determined that although defendants’ defense was not frivolous, their case was weak in several key aspects, particularly as to originality and authorship. The second factor, motivation, weighed in defendants’ favor because they obtained copyrights “to protect the Song from what they feared might be improper exploitation of an American treasure” and to collect royalties for donation to charitable and educational causes. As to the third factor, the court determined that “[a] few aspects of the defendants’ litigating position . . . bordered on the objectively unreasonable,” including in their motion to dismiss and a motion to terminate the case, which they filed on the eve of trial and which reflected their “lack of confidence in their ability to defend against either the authorship or fraud challenges to their copyrights at trial.” As to compensation and deterrence, the court determined that the lawsuit fulfilled the twin goals of the Copyright Act — “to provide access for the public to the creative works of others, and to permit others to build on those creative works.”

In calculating the amount of fees to which plaintiffs were entitled, however, the court determined that the $1 million request was excessive. It held that an across-the-board reduction of 65 percent to plaintiffs’ counsel’s hourly rates was warranted, primarily because “[a]ny reasonable, hourly fee-paying client choosing to bring this case . . . would likely have found pro bono or reduced fee representation” under the circumstances, given the nonprofit status of the We Shall Overcome Foundation, the historical importance of the song at issue, and the substantial publicity and reputational benefits that plaintiffs’ counsel was likely to — and did — enjoy in bringing and prevailing in the case.

Although a rate reduction was warranted, the court determined that plaintiffs’ counsel’s hours were largely appropriate. It agreed that counsel appropriately eliminated time spent drafting and defending the state law claims and class certification allegations and properly reduced their hours by an additional 10 percent to eliminate concerns over duplicative attorney work. After applying a slight further deduction for hours spent on publicity related to the case, the court found that plaintiffs’ counsel had expended a reasonable number of hours, particularly as compared to the time spent by defense counsel.

Summary prepared by Frank D’Angelo and Sara Slavin