Should the song be Public Domain?

The same law firm that succeeded in getting “Happy Birthday” into the public domain is now trying to get “We Shall Overcome” released from copyright.  This week, a federal court ruled to let the case move forward.

The song became a galvanizing force in the civil rights movement during the 60’s, but was sung by striking workers as early as the 40’s.  It became an iconic symbol of the struggle against racism and injustice.

Ludlow Music registered “We Shall Overcome” as a “derivative work” and was granted the copyright in 1960.

A filmmaker sued this year, saying the work should be in the public domain.  The suit was filed after he was working on a film about the history of the song and says he was denied permission to use the song.

The group that owns the song says it uses 100% of the royalties to advance “art and activism about injustice” in the African American community, according to its website:

The We Shall Overcome Fund supports a wide range of projects including:

  • Performance and visual arts projects linked to or directly serving efforts that seek to transform unjust social, economic, and political environments/conditions/imbalances;

  • Workshops, conferences, and research projects that use arts and culture to build coalitions, share information, inspire, and mobilize people to take action;

  • Preservation of Civil Rights Movement documents; multi-media research projects that document and share the history of the Movement.

The song is actually an adaptation of an earlier work that has exactly the same melody and nearly identical lyrics, according to the lawsuit.  “Virtually indistinguishable,” is how the lawsuit describes it.

The first known printed reference to the spiritual is in a 1909 edition of the United Mine Workers journal.  The song was then called “We Will Overcome.”

Her are the first verse of the two songs:  The first is the 1909 edition that is in the public domain and the second the copyrighted version.

The judge refused to dismiss the suits, writing that “the plaintiffs have plausibly alleged that the lyrics in the first verse of the song were copied from material (already) in the public domain.”