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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Ninja (profile), 11 Sep 2017 @ 10:12am

    "In the long run, it certainly seems likely that the barrier of a fake copyright on "We Shall Overcome"... shall be overcome."

    Well played, sir. Make the reader go through the entire article with that comedic itch just to play the ace in the end. Bravo!

    reply to this | link to this | view in chronology ]

  • identicon
    J.R., 11 Sep 2017 @ 12:45pm

    Sounds promising.

    It would be nice if fake copyrighters had to pay triple damages to those they defraud. Won't hold my breath ...

    reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 11 Sep 2017 @ 1:14pm

      Re:

      When does fraud on such a massive scale go from civil to criminal liability?

      Warner Chappell's fraud over Happy Birthday should have easily crossed such a line, given the decades of fraudulent income it gave them.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 11 Sep 2017 @ 12:49pm

    Sometimes you could just puke.

    So somebody registers the song under Pete Seeger's name, with Pete Seeger being the protest singer that repopularized the sond, and Pete Seeger asks to have his name taken off. And they just ignore his request and once he is dead, try to make money from gatewaying access to it.

    Because the music industry fights for the artists' interests.

    Right.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2017 @ 12:53pm

    Similar to what happened with Woody Guthrie's "This Land Is Your Land";
    https://en.wikipedia.org/wiki/This_Land_Is_Your_Land#Copyright_controversy

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 11 Sep 2017 @ 1:15pm

    Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

    You are deliberately conflating this instance where source and therefore rights are muddied to attack the clear natural rights stated in the Constitution. -- By pushing out the old "absolute" gambit. You can always find an extreme where other factors weigh more heavily, but that never undermines the principles.

    But Robinson Crusoe is not civilization, it's savagery. The benefits of civilization are many-fold better than "natural rights" as you're framing them. At the very least, you get to enjoy those creations. The only "price" you pay in terms of losing your "natural right to copy" is keeping your paws off. Civilized people respect the rights and creative output of others so that due rewards accrue only to creators, instead of putting files up for every couch-pumpkin to download for free.

    Key emphasis: "[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." -- I can't recall anyone here ever arguing there's not "dual premises", let alone that the away to achieve those is not by the NECESSARY copyright monopoly.

    No, pirates, you are just childishly arguing that you can take the work-products of other persons and dispose of them as you please. You are THIEVES, and Masnick is a klepto-economist, never concerned with creators, always trying to find a way to dodge the law.

    The body of copyright law is to prevent what you're DOING on "file hosts" and "torrent sites". STOP IT. Be civilized. Respect the rights of others. You are NOT being harmed by someone else "owning" intellectual products that they worked and paid to create. You wouldn't have them at all EXCEPT for the system that's been worked out. You just want your empty minds to be entertained for free. Make something of your own, and then see how you feel about it being stolen.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 11 Sep 2017 @ 1:27pm

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      Have my funny vote. Every conceivable bullshit is to be found in your reply. Bravo!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2017 @ 1:30pm

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      Nice rant, but the people stealing actual money are those companies who fraudulently claim copyright on a work long after that copyright has expired.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2017 @ 2:35pm

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      Oh go eat a dick you filthy TOR pirate.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 11 Sep 2017 @ 2:35pm

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      I can't recall anyone here ever arguing there's not "dual premises", let alone that the away to achieve those is not by the NECESSARY copyright monopoly.

      Most of the time, pro-copyright commenters here take the stance that copyright is only ever necessary for one purpose—which is “for artists to make money”. Rarely do I see copyright supporters, including you, harp on about how longer copyright terms and stronger copyright laws affect the public domain.

      you are just childishly arguing that you can take the work-products of other persons and dispose of them as you please

      Please point out, with quotes and citations, how anyone here makes this argument.

      You are THIEVES

      Copying, illicit or not, is not theft.

      Masnick is a klepto-economist, never concerned with creators

      Funny, then, how Techdirt points out cases of success stories that route around copyright and cases of failures brought upon by trying to control everything via copyright. That comes off as an attempt to teach others what can and cannot work in regards to content distribution in the Internet Age—to help creators avoid the mistakes of others.

      The body of copyright law is to prevent what you're DOING on "file hosts" and "torrent sites".

      If the people are lawfully distributing their own material through those evil “pirate sites”, what should happen to them?

      You are NOT being harmed by someone else "owning" intellectual products that they worked and paid to create.

      The “ownership” of artistic works that should be in the public domain does harm the general public—it robs them of the chance to create new cultural works on the basis of older works, much like the entirety of culture until now has done. People should not have needed to pay for a license to use “Happy Birthday to You” when the song should have been in the public domain years—if not decades—ago.

      You just want your empty minds to be entertained for free.

      And you are doing an awful job of entertaining us despite posting here for free.

      Make something of your own, and then see how you feel about it being stolen.

      I do not care if someone copies one of my works. I am entitled only to my labor, not to a reward. I would be annoyed if someone monetized my work, sure, but if they can do a better job of monetizing it than I can, they deserve the money. All I deserve is to put my ass back in the chair and work harder on something new.

      Making copyright last for eternity will not change that. Giving me the right to sue over someone lifting even the smallest amount of my work for use in their own will not change that. Copyright does not give me an incentive to create—it gives me only a legal structure by which I can punish others. And that structure does me no good if I spend more time chasing down illicit copies of my old works than I spend creating new works.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 11 Sep 2017 @ 3:21pm

        Re: Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

        The “ownership” of artistic works that should be in the public domain does harm the general public—it robs them of the chance to create new cultural works on the basis of older works, much like the entirety of culture until now has done.

        Indeed, I'm not the first person, and won't be the last, to observe that the last major copyright term extension was pushed by a company that built an empire on adapting stories from the public domain (from Three Little Pigs and Jack and the Beanstalk in the Silly Symphonies shorts, to Snow White, Sleeping Beauty, Cinderella, Alice in Wonderland, Pinocchio, Fantasia, and I believe they started work on The Jungle Book as soon as it entered the public domain).

        There are plenty of creative works that have been suppressed, and both their creators and the public deprived of them, over copyright disputes; the documentary Eyes on the Prize was out of print for years due to disputes over music copyrights (including, presumably, the fraudulent copyright on We Shall Overcome). The Peabody-winning comedy series Mystery Science Theater 3000 has a number of episodes that are currently unavailable for legal distribution because those episodes include movies that they no longer have the rights to; if not for the copyright extensions of '76 and '94, many of those movies would now be in the public domain and the episodes would be available for sale. (Note the qualifier "for sale" -- because of course those episodes are available for free, on YouTube, torrent sites, private networks, etc.; people are watching those episodes and not paying for them, and, as the sales on the legally-available episodes have proven, would be willing to pay for them if they had that option.)

        It takes a pretty perverse kind of reasoning to rail against people watching videos on YouTube as freeloaders who just want something for nothing while simultaneously defending the companies that have been fraudulently making money off of Happy Birthday, We Shall Overcome, Sherlock Holmes, etc.

        reply to this | link to this | view in chronology ]

        • icon
          kadmos1 (profile), 15 Sep 2017 @ 9:47am

          Re: Re: Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

          While Warner Bros., Columbia Pictures, Fox Film (including 20th Century Fox), Universal, and Paramount did establish an empire using public domain stories, they also used still copyrighted stories. I say it was the House of Mouse that is the biggest offender of this since many of their most believed stories are public-domain based.

          reply to this | link to this | view in chronology ]

          • identicon
            Thad, 15 Sep 2017 @ 5:46pm

            Re: Re: Re: Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

            Yes, that's why I explicitly used Disney as my example; also because the Copyright Act of 1994 was directly aimed at extending the copyright of the earliest Mickey Mouse shorts.

            reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 Sep 2017 @ 3:34pm

        Re: Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

        Most of the time, pro-copyright commenters here take the stance that copyright is only ever necessary for one purpose—which is “for artists to make money”. Rarely do I see copyright supporters, including you, harp on about how longer copyright terms and stronger copyright laws affect the public domain.

        The closest I have ever seen is an argument, and I'm not sure how serious they were or if it was more along the lines of a purely hypothetical thought experiment, regarding how if copyright for X years provided incentive for creation, then copyright for X years plus more would provide more incentive.

        Pretty much every other time the maximalists completely ignore the public entirely, and focus only on the copyright owners, as though they were the only concern and the law was solely to benefit them.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Sep 2017 @ 6:17pm

          Re: Re: Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

          The person making that argument was average_joe, who also espoused the perspective that forever minus a day was less than forever, so it counted as limited - even after it gets extended.

          He's as much as a nutjob as out_of_the_blue and blue has professed undying devotion for him.

          This is going to get messy when MyNameHere and Hamilton show up knocking on the door and these two lovebirds are trapped in the closet...

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 12 Sep 2017 @ 1:28am

          Re: Re: Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

          "copyright for X years plus more would provide more incentive."

          While silly, at least on its face the argument had some value. But, it fell apart the moment they supported retroactive extensions of existing copyrights, especially for deceased authors. By definition, the terms in place were incentive enough for works that already exist to be created. They would also, of course, reject any facts showing that overbearing copyright actually chills and deters some new works from being created.

          "focus only on the copyright owners"

          It's worth stressing that - those guys would focus solely on who OWNED the copyrights, not the works' original creators or authors. So, when a corporation who owned the copyrights were openly and literally stealing from the authors, or demanding that it's right for them to posthumously extend the amount of time they can continue to collect, those people would happily side *against* the people who made the actual works. They were only concerned about corporate ownership of culture.

          reply to this | link to this | view in chronology ]

      • identicon
        Thad, 11 Sep 2017 @ 4:32pm

        Re: Re: There's no phone, no lights, no motorcar, not a single luxury; like Robinson Crusoe it's as primitive as can be.

        Adding:

        Also, Robinson Crusoe is public domain.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2017 @ 3:19pm

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      Robinson Crusoe is in the public domain.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2017 @ 3:52pm

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      Key emphasis: "[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."

      Nice of you to emphasise that. It's now well known that the copyright monopoly is not a necessary condition for creative activities.

      That is to say, one of the premises on which the authority to grant copyright is predicated is in fact false.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2017 @ 6:16pm

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      Happy Birthday lost its copyright status. Your favorite corporation Warner held onto it, despite having no right to do so, and profited and threatened off the back of it for years.

      Sucks to be you, doesn't it?

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 12 Sep 2017 @ 1:33am

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      "You just want your empty minds to be entertained for free"

      You know, it might be worthwhile if you could both a) stop repeating this open lie about people supporting alternative business models that require no such thing and b) accept that this has always been the case for a large amount of culture since mass media was invented (most people have never paid directly for music (radio), TV (OTA broadcasts), newspapers (either free or shared between multiple readers in public spaces, books (libraries), etc.)

      As long as you continue to create your own fantasy world from which to espouse your nonsense, all you are doing is providing free entertainment fro those reading your words. Which, I admit, is deliciously ironic and a very silly waste of time that only diminishes the power of the anti-consumer corporate view. So, please continue.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Sep 2017 @ 7:08am

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      You seem to have not grasped that copyright law itself was written back when mass copying was an analog domain activity, constrained by the linkages between medium and fixed copy inherent to the analog domain, yet differing between different types of works within the analog domain (written word, still imagery, audio, video).

      Now that most copying takes place in the digital domain, unmoored from fixing copies into copy-specific analog media, the assumptions that copyright law made about the nature of how copying works are false. No longer are copies one-to-one associated with their fixing media, nor does copying one type of work differ from another, and composite works can be readily made -- it's all bits.

      Nowhere is this more clear than in copyright's exclusive grant of a right of reproduction. In the analog domain, this is a sensible thing to do: reproduction is required to distribute a work, and largely required for the making of derivative works as well, but not required to enjoy the work.

      However, in our digital world, trying to apply the right of reproduction goes haywire. Strictly read, it forbids activities (such as stashing a copy of the podcast collection one bought from iTunes on one's NAS box) that pose no threat to the monopoly grant, while it fails to impose upon the creation of derivative works in cases where it would have applied in the analog domain (such as images embedded into a Web page, but hosted by the original source).

      More fundamentally, in the analog domain, works natively have move semantics by way of being fixed into physical media. If I lend you a book, then I do not have that book until you return it -- the next bloke who asks for it simply gets a "Sorry, wait in line" message. When we move to the digital domain, though, this is not so. In the digital domain, everything natively has copy semantics -- if I write "var1 = var2" in an imperative language, var2 is still usable as a name for the value in question in addition to var1 now being usable as a name for the value, and the same holds for files and other such digital objects.

      Our current copyright law was written around the move semantics of physical media, and as a result, produces nonsense results when applied to digital objects. (A simple example is trying to apply the reservation of reproduction against those simply space-shifting media -- taking a book with you on the bus wouldn't trigger this, but copying an eBook from your PC to your tablet triggers the right of reproduction under a strict reading.)

      Or, more simply: if copyright law is producing effects which contradict its stated purpose in the Constitution, then either we have to say the authors of the Constitution wrote a clause of fluff in, or copyright law needs to change. Something's got to give here...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Sep 2017 @ 10:27am

      Re: Robinson Crusoe had natural rights so long as the cannibals didn't violate those by killing and eating him.

      and that the copyright monopoly is a necessary condition the full realization of such creative activities

      Considering that the majority of creators now rely on a models whereby they are paid to produce new works, copyright is not a necessary condition for creativity to take place. However those who make money by taking over the copyrights of works produced by others may have a different view on the matter.

      reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 11 Sep 2017 @ 1:19pm

    Slow process

    Ya know, if we have to sue and then litigate for a year or two per song to get them into public domain, this could take a while. From what I hear, there are, like, dozens of songs in existence.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.