Early this year, music publisher Warner/Chappell settled a lawsuit that ended with “Happy Birthday” in the public domain. Now another famous song is in the middle of a legal battle. In April, the same legal team behind the “Happy Birthday” lawsuit filed a class action suit for the We Shall Overcome Foundation (WSOF) against The Richmond Organization and its subsidiary Ludlow Music, Inc., seeking a declaratory judgment on whether “We Shall Overcome” is in the public domain. “We Shall Overcome” is most remembered as the protest anthem of the Civil Rights Movement in the United States.

In the complaint, which was filed in the United States District Court for the Southern District of New York, WSOF stated that Richmond did not own a valid copyright to the musical composition of the song, and that the song was an adaptation of an African-American spiritual—with the same melody and similar lyrics—from the late 19th or early 20thcentury. It was printed in the February 1909 edition of the United Mine Workers Journal. Then in the 1940s, tobacco workers on strike used “We Shall Overcome” as a protest song in Charleston, South Carolina. Over the years, the lyrics changed and new verses were added. Richmond owns two registered copyrights from 1960 and 1963 for the musical composition and a derivative work, respectively. As a result, the organization filed a motion to dismiss the portion of the complaint challenging their copyright for the lyrics of the first verse, claiming that the registrations were prima facie—“at first sight”—evidence of copyright validity. Richmond also sought to have state law claims dismissed. On November 21st, Judge Denise Cote denied Richmond’s motion to dismiss The Copyright Act claims.

Judge Cote found that the first verse of Richmond’s “We Shall Overcome” lacked originality. “The copyrighted work differs from the 1948 version by only three words: (1) ‘we’ll’ for ‘I’ll’; (2) ‘shall’ for ‘will’; and (3) ‘deep’ for ‘down,’” her opinion stated. She also found that the Richmond defendants were not the authors who changed the three words; therefore, the organization couldn’t claim the copyright. She went on to say that even though a certificate of registration was prima facie evidence of validity, the “presumption may be rebutted where other evidence cast doubt on the question, such as ‘evidence that the work was copied from the public domain.’”

Cote further ruled that the plaintiffs had made a plausible argument that Richmond’s rights in the lyrics in the first verse divested when the song was published without the copyright notice, which was required for works published before 1978 under The Copyright Act of 1909. The exception, as determined in the Second Circuit’s holding in Goodis v. United Artists Television, Inc. from 1970, is when the work is published in a magazine, and the “‘copyright notice in the magazine’s name is sufficient to obtain a valid copyright on behalf of the beneficial owner, the author or the proprietor.’” The exception did not apply, however, “where ‘the overall message informed the public that this was an old folk song, of unknown authorship, and in the public domain.’” WSOF was able to show that the song was published without the copyright notice after registration, that its publication in a collected work did not have a notice or list the defendants as the authors, and that the defendants didn’t meet the Goodis exception.

The dismissal of state law claims was the only real win for Richmond. The court found that The Copyright Act preempted those claims.

The opinion is: We Shall Overcome Foundation and Butler Films, LLC v. The Richmond Organization, Inc. and Ludlow Music, Inc., Southern District of New York, 16cv2725.

Stay tuned to our blog for more on this lawsuit.