Lawyers Overcome First Challenge In Showing 'We Shall Overcome' Is In The Public Domain
from the sing-it! dept
A year and a half ago, we wrote about how the same team of lawyers who successfully got “Happy Birthday” recognized as being in the public domain (despite decades of Warner Chappell claiming otherwise, and making boatloads of money) had set their sites on a similar fight over the copyright status of the song “We Shall Overcome.” There were a lot of details in the original lawsuit that we wrote about — all suggesting very strongly that the song “We Shall Overcome” was way older than the copyright holder claimed, and it was almost certainly in the public domain.
There’s been some back and forth in the case, but a new ruling on summary judgment motions effectively says key parts of the song are not under copyright. Specifically at issue is whether or not the first and fifth verse of the song are “sufficiently original” to qualify for copyright. And here, Judge Denise Cote says “nope.” The verse in question is probably the part of the song you know:
We shall overcome,
We shall overcome
We shall overcome some day
Oh deep in my heart I do believe
We shall overcome some day.
Here, basically no one denies that there are extraodinarily similar songs that predate the 1960 and 1963 copyrights. The real question is whether there was some sort of substantial difference in the new copyrighted versions from the original — enough to grant a new copyright. There’s a LOT of history that the ruling digs into, and I’m not going to repeat it all here. Suffice it to say it appears that those registering the copyright were well aware that they were registering the copyright on a song that had been around for ages. Pete Seeger, who is on the copyright — but apparently asked to have his name taken off later (which never happened, and it’s now revealed that others hoped he would “forget” he asked about it) — has said many times that the song was much older. The admission is that they filed for the copyright to prevent the song from being commercialized (which is, in some ways, kind of the opposite of the purpose of copyright, but…). And that’s copyfraud. That’s not the purpose of copyright and filing for such a registration is not supposed to be allowed.
Here, the court doesn’t reach a decision on whether or not the registration was fraud on the Copyright Office — that issue may move on to trial. However, the judge does make it clear that the copyright here doesn’t seem legit. Specifically, in this case, the question being decided is who has the burden here. The holders of the copyright wanted to force the plaintiffs to prove that the copyright is invalid, arguing a “presumption of validity” in their registered copyright. But the court notes that enough evidence has presented to raise serious questions about the legitimacy of that copyright that the burden falls on the defendants to prove that the copyright (specifically on those two identical verses) is legit:
Without a sufficiently original contribution to Verse 1/5, the Song?s Verse 1/5 does not qualify for copyright protection as a derivative work. This similarity, coupled with the failure to clearly identify the PSI Version of the Song as the Song?s antecedent is also sufficient to rebut the presumption of validity. Therefore, the Defendants may not rest on a presumption that their copyrights are valid and they bear the ultimate burden of showing the validity of those copyrights without the weight added by that presumption.
So that’s not a complete “this is in the public domain.” But… it’s a pretty strong indication of where we’re heading.
On a separate note, I’m pleased to see the following discussion on how copyright is not (as some try to argue) some sort of “natural right” or one that “confers absolute ownership.”:
The Constitution provides that ?Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries?. U.S. Const. art. I, § 8, cl. 8. This constitutional grant of authority to create a copyright is given in express recognition of the primacy of the public interest. See TCA Television Corp. v. McCollum, 839 F.3d 168, 177 (2d Cir. 2016). ?[T]he primary purpose of copyright is not to reward the author, but is rather to secure ?the general benefits derived by the public from the labors of authors.?? New York Times v. Tasini, 533 U.S. 483, 519 (2001) (Stevens, J., dissenting) (citation omitted). ?[T]he authorization to grant to individual authors the limited monopoly of copyright is predicated upon the dual premises that the public benefits from the creative activities of authors, and that the copyright monopoly is a necessary condition the full realization of such creative activities.? Melville B. Nimmer & David Nimmer, 1 Nimmer on Copyright § 1.03[A] [hereinafter ?Nimmer?]; Barton Beebe, Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law, 117 Colum. L. Rev. 319, 341 (2017) (?The Framers likely included the Progress Clause both to justify and to limit in some way the extraordinary grant of monopoly rights provided for by the Exclusive Rights Clause.?). As the Honorable Pierre Leval has explained, ?[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.? Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990).
That’s not necessarily a key point in the ruling, but I think it’s important to remind some people of this fact, since it’s one that’s frequently confused by copyright system supporters.
Either way, it’s worth reading the full ruling. This is not a complete victory, but it’s a good start. In the long run, it certainly seems likely that the barrier of a fake copyright on “We Shall Overcome”… shall be overcome.