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‘We Shall Overcome’ Verse Now in the Public Domain

A judge recently struck down the copyright for the first verse of the iconic Civil Rights song

Joan Baez during the Civil Rights March on Washington, D.C. in 1963. (National Archives)
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Part of the classic Civil Rights song "We Shall Overcome" has now entered the public domain after a U.S. judge struck down its copyright protections last Friday, reports Rick Karr for NPR.

"I couldn't be more humbled or thrilled to share the news that [...] the iconic and revered lyrics and music to 'We Shall Overcome' are now in the public domain and free for the whole world to sing," lead plaintiff Isaias Gamboa, a filmmaker looking to make a documentary on the song, wrote on his website

After Gamboa was denied the right to use the song in his documentary​, his nonprofit group We Shall Overcome Foundation decided to take ​Ludlow Music Inc. and The Richmond Organization, the two publishers who own the copyright to the song, to court. The makers of the 2013 Lee Daniels film, The Butler, later joined the suit over the amount they were charged to license the song for the film. (As The Hollywood Reporter's Eriq Gardner points out, though, royalties charged by the publishers are "earmarked for the Highlander Research and Education Center to support art and research projects in the African-American community as well as the preservation of Civil Rights Movement documents."​)

The plaintiffs' case was argued by lawyer ​Randall Newman, whose team previously succeeded in getting the longstanding copyright to the song "Happy Birthday To You" struck down last year. Adopting a similar legal strategy for "We Shall Overcome," Newman traced the tangled folk music roots of "We Shall Overcome" to make a case that it should have never been copyrighted by the publishers in the first place.

As Edward Helmore of the Guardian writes, the earliest roots of the song can be traced to an African-American spiritual titled "I'll be All Right." The song first appeared in print in 1909 in the labor union publication, the United Mine Workers Journal, where it appears to have picked up lyrics from a 1903 song called "I'll Overcome Some Day," writes Kate Stewart of the Library of Congress. Civil Rights activist and musician Zilphia Horton first heard the song in 1946 at a labor strike, and later taught it to folk musician Pete Seeger. They published the song in 1948 as "We Will Overcome," with a copyright, which was made ostensibly to protect the anthem from being misused for commercial reasons, notes Helmore​. Later, the copyright was allowed to lapse, reports Joe Mullin for Ars Technica, putting the song in the public domain.

However in 1960 and 1963, Ludlow Music and The Richmond Organization filed its own copyright applications on a song with slightly altered lyrics, notably replacing "we will overcome" with the more popular phrasing "we shall overcome," which, according to Ludlow and Richmond attorney Paul LiCalsi, substantially changed the song, making it an original derivative of a 1948 version of the song.

"The 1960 and 1963 registrations of the song 'We Shall Overcome' copyrighted the classic arrangement and new words composed by the authors Zilphia Horton, Frank Hamilton, Guy Carawan and Pete Seeger," LiCalsi wrote to The Hollywood Reporter in 2016. "These copyright registrations were for derivative works. The authors and Ludlow have always acknowledged that 'We Shall Overcome' incorporated rich and important traditional elements from the public domain."

A New York judge, however, agreed with the plaintiffs that the changes made to the first verse lacked the necessary "originality" to make the version an original derivative.

"The fact that a trivial change to the lyrics became a part of a popular version of a song does not render that change nontrivial and automatically qualify the popular version for copyright protection," Judge Denise Cote wrote in her opinion. "The words will and shall are both common words. Neither is unusual."

Since the judge's ruling only applies to the first verse of the song, expect future legal battles over the copyrights for the rest of the song.

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