'We Shall Overcome’ Verse Not Under Copyright, Judge Rules
By BEN SISARIOSEPT. 8, 2017
A crowd sings “We Shall Overcome” at a rally in Farmville, Va., in 1966. The New York Times
A federal judge on Friday struck down the copyright for part of the civil rights anthem “We Shall Overcome,” saying that the song’s adaptation from an older work — including changing “will” to “shall” — was not original enough to qualify for protection.
The case is the latest one to cancel the copyright of a time-honored song that many people may well assume was available for anyone to sing, after “Happy Birthday to You” was declared part of the public domain last year. A similar suit challenging Woody Guthrie’s “This Land Is Your Land” is pending.
The decision on “We Shall Overcome,” by Judge Denise L. Cote of United States District Court in Manhattan, concerns the first verse of the song, which contains the lyrics “We shall overcome / We shall overcome some day” and “Oh deep in my heart I do believe / We shall overcome some day.”
Those lines, repeated in the fifth verse, have been associated with civil rights and peaceful protest for decades, and resurfaced most recently after the white supremacist rallies in Charlottesville, Va.
The song’s origins have been traced to spirituals at the turn of the 20th century. In 1960 and 1963, the publisher Ludlow Music registered copyrights for it, saying that the song’s authors — including Pete Seeger — had made changes to earlier versions of it.
Last year, the song’s copyright was challenged by the makers of a documentary on the song’s history and by the makers the 2013 film “Lee Daniels’ The Butler,” who wanted to use part of the song in the movie.
Judge Cote granted partial summary judgment to the plaintiffs, saying that the song “lacks originality,” and in her ruling she focused on the changing of “will” to “shall.”
“This single word substitution is quintessentially trivial and does not raise a question of fact requiring a trial to assess whether it is more than trivial,” Judge Cote wrote. “The words will and shall are both common words. Neither is unusual.”
One party that stands to lose from the decision is a fund that supports social and cultural programs in the South, which receives royalties from commercial uses of the song.
“We are delighted with the court’s ruling today giving this iconic civil rights song back to the public,” said Mark C. Rifkin, a lawyer for the plaintiffs.
Paul V. LiCalsi, a lawyer for the publisher, said, “We do believe that the changes made to the first verse were significant and iconic, and we are very disappointed in this ruling, which takes the determination away from a jury.”
In addition to challenging the first and fifth verses of “We Shall Overcome,” the plaintiffs also sought to have the copyright for the entire song declared invalid, accusing its publishers of committing a fraud on the United States Copyright Office through its registrations.
Judge Cote denied summary judgment on that point, saying it would take a trial to resolve the question.