“We Shall Overcome,” Iconic Civil Rights Anthem, Returned to Public Domain

Wolf Haldenstein Frees Iconic Civil Rights Anthem “We Shall Overcome” in Historic Court Ruling

New York, NY – September 9, 2017 – Wolf Haldenstein Adler Freeman & Herz LLP frees “We Shall Overcome,” the iconic Civil Rights song.  “We Shall Overcome,” America’s most powerful song, now joins “Happy Birthday,” the world’s most popular song, in the public domain as a result of an historic ruling issued by Honorable Denise Cote, United States District Court Judge for the Southern District of New York. After the global success of freeing “Happy Birthday,” Wolf Haldenstein turned its efforts towards freeing “We Shall Overcome,” the country’s most powerful song, according to the Library of Congress.

In We Shall Overcome Foundation v. The Richmond Organization, Inc. (TRO Inc.), et al., No. 16-cv-02725-DLC (S.D.N.Y.), the plaintiff sought a declaration that The Richmond Organization and its subsidiary, Ludlow Music, Inc., do not own a copyright to “We Shall Overcome.” The Complaint was filed in the United States District Court for the Southern District of New York in April 2016.

Two months after the original Complaint was filed, producers from the film “The Butler” joined as an additional plaintiff in an Amended Complaint. The film’s producers planned on using “We Shall Overcome” in several critical scenes, including scenes depicting the 1963 riots in Birmingham, Alabama, the 1965 riots in Selma, Alabama, the conflict later that same year at the Pettus Bridge, and the 1968 riots in Washington following the assassination of Martin Luther King Jr. The producers repeatedly sought to obtain permission from the Defendants but were repeatedly stonewalled. After much initial resistence, the Defendants demanded as much as $100,000 to use the Civil Rights anthem in the film about the Civil Rights movement.

Wolf Haldenstein argued that the copyrights Ludlow registered in 1960 and 1963 to claim ownership of “We Shall Overcome,” a song that was in the public domain at least as early as 1948, was flawed. In a ruling issued late yesterday, Judge Cote agreed. In a thorough and well-reasoned decision, Judge Cote granted partial summary judgment for the Plaintiffs, ruling that the Plaintiffs “have shown that the Defendants’ 1960 and 1963 applications for a copyright in the Song were significantly flawed.” Judge Cote ruled that the changes to the melody and the song’s main verse in the 1960 and 1963 versions, compared to the work already in the public domain, were so trivial and insignificant that they were not “original” and therefore are not entitled to copyright protection. Judge Cote’s decision means that the melody and inconic verse are once again in the public domain and not subject to a copyright claim.

Apart from many other deficiencies in the copyright record, Judge Cote noted that Ludlow failed to identify the original work on which their derivative work was based, hiding the trivial differences in the pre-existing melody and well-known lyrics of the first verse.  Ludlow also failed to list Pete Seeger, the songwriter who supposedly changed one of the words in the first verse, as an author in the 1960 copyright application. According to Judge Cote, the Defendants’ evidence on who actually made that trivial change was “equivocal.”

Wolf Haldenstein partners Randy Newman and Mark Rifkin and associate Gloria Melwani successfully argued the copyright’s invalidity. Mr. Newman stated “We are extremely pleased with the court’s ruling today giving this iconic Civil Rights song back to the public.  We were able to prove that any contribution the defendants made to the song – as to which the evidence was equivocal at best – lacked originality and was not copyrightable.”

Founded in 1888, Wolf Haldenstein has extensive experience in the prosecution of complex class actions in state and federal trial and appellate courts across the country. The firm’s attorneys have expertise in various practice areas, including federal civil rights litigation. Wolf Haldenstein’s reputation and expertise in class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex multi-district and consolidated litigations.

For additional  information related to the We Shall Overcome litigation please see here.