“We Shall Overcome” in the Public Domain

September 11, 2017New York State Bar Association EASL Blog

In a significant decision issued on Friday, Judge Denise Cote granted summary judgment in favor of the class action plaintiff organizations against the owners of the publishing rights to Pete Seeger's iconic civil rights song "We Shall Overcome," finding that the original 1948 copyrighted version of the sheet music (with lyrics), which was owned by Seeger's company, People's Songs, Inc. ("PSI") and had fallen into the public domain in 1976, was not sufficiently different from the core portions of later versions recorded in 1960 and 1963, in which derivative copyrights were claimed by the defendant music publishers. Judge Cote agreed with the plaintiffs "that the lyrics and melody in the first verse and its identical fifth verse ("Verse 1/5") of the Song are not sufficiently original to qualify for copyright registration as a derivative work." The opinion goes through a detailed, lengthy history of the song's genesis.

The song likely originated from an old spiritual that Zilphia Horton learned from striking tobacco workers in South Carolina in the early 1940s. Seeger learned a version of the song from Horton. In 1960, defendant Ludlow Music, Inc. registered a copyright in the sheet music for a claimed derivative version of the song, listing Horton as a co-author with two others (but not Seeger). In 1963, Ludlow obtained a second registration that identified Seeger, along with Horton and the others, as the authors of "New words and music adaption."

The court found only minor differences between the 1948 public domain PSI sheet music version and the later versions registered in 1960 and 1963. Specifically, the words "I will overcome" were changed to "I shall overcome" and the phrase "down in my heart" was changed to "deep in my heart." Two small music changes were also noted, described by Judge Cote as follows:

In both versions of the Song the differences occur during the melodic descent from note "A" to "E" during the singing of the word "overcome." Specifically, the descent from "A" to "E" begins one beat later in the Copyrighted Song, and an eighth note "F" is added between notes "G" and "E" in the second measure. This also changes the rhythm of the second measure. The second difference appears in the seventh measure. In both versions, the melodic descent is from note "D" to "G" during the singing of the word "someday," which is sung over measures six to eight. The Copyrighted Song adds a flourish or trill during this descent, while the word "day" is being sung. The trill consists of three eighth notes "A - B - A."

The court initially rejected any presumption of validity of the 1960 and 1963 copyright registrations because of erroneous information submitted to the Copyright Office about the derivative nature and authorship of those works.

On the core issue of similarity with the 1948 PSI public domain version and the enforceability of the 1960 and 1963 versions as independent derivative works, Judge Cote held "that the melody and lyrics of Verse 1/5 of the Song are not sufficiently original to qualify as a derivative work entitled to a copyright. As a matter of law, the alterations from the PSI Version are too trivial. A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. As §101 of the Copyright Act teaches, a judgment about modification to an original work must be based on a consideration of the derivative work 'as a whole.'"

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