I have been so
wrapped up in the “Stairway to Heaven” drama that I was not aware of the
controversy surrounding the copyright to
the song “We Shall Overcome”. However, One of my students in my Music
Industry Law class at Trevecca Nazarene University in Nashville, Christopher
Thiessen, just wrote an excellent paper on the subject and with his permission, I am reprinting his work
here. It’s pretty interesting.
Late last year, attorneys Mark
Rifkin and Randall Newman helped release the forever-famous tune “Happy
Birthday To You” to the public domain. After years of collecting around $2
million a year on royalties, Warner/Chappell music was finally brought to
justice for the unlawful collections of monies that did not belong to them.
Rifkin and Newman were able to prove over the course of the case that the song
was public domain and that all that Warner owned were specific derivative
renditions of a song that has transcended time and tradition. Now they are
trying to accomplish the same feat with another song that has had an incredible
cultural impact for over a century.
“We
Shall Overcome” is a song that has its earliest roots in 19th
century gospel and African-American folk music. It is highly disputed where and
by whom the song was first originally written, performed, and recorded.
However, over the course of the 20th century it has become the theme
song of civil rights and has had incredible historical significance. With such
high significance in the history of African-American liberation from injustice,
Rifkin and Newman are trying to overcome the injustice done by the The Richmond
Organization and Ludlow Music’s misuse of copyright.
The
legal complaint has been filed by the We Shall Overcome Foundation as a class
action complaint on behalf of all those that have been affected by the unlawful
copyright ownership by TRO-Ludlow Music, Inc. The We Shall Overcome Foundation
(or WSOF) is in the process of producing a documentary movie, which requires
the use of the song “We Shall Overcome”. The WSOF is also in the process of
producing a soundtrack to accompany the documentary. In order to do this in a
legal way, WSOF complied with copyright law and sought out TRO-Ludlow Music for
both a compulsory mechanical license for the soundtrack and a synchronization
license for the documentary.
Since
the mechanical license is compulsory, WSOF did obtain that license and paid a
fee of $45.50 for the distribution of 500 copies of the soundtrack. However,
they have been denied a synchronization license even after numerous attempts to
comply and be reasonable.
The
plaintiff first sent a request for a sync license quote to the defendant in
February 2015. The defendants’ response to the request was the following: “’We
Shall Overcome’ is a difficult song to clear. I have been advised by our
historians that we will need to review the recording that is intended to be
used. The song cannot be cleared without reviewing what’s being sung and the
quality of the representation of the song.”
After receiving this
response, the WSOF hired Nephertiri Lewis to record the use they were
submitting for consideration. This use was an audio file that contained what
the plaintiff claims to be the “familiar lyrics” of the song that should be
determined to be public domain:
We
shall overcome
We
shall overcome
We
shall overcome some day
Oh
deep in my heart, I do believe
We
shall overcome some day
In response to this submission by
WSOF, TRO-Ludlow Music denied the request on the basis that the song is “very
difficult to clear.” WSOF attempted several more times over the course of the
year to gain permission from the defendant for the use of “We Shall Overcome”.
Each time, however, the defendant denied the request citing that they had
exclusive rights to all lyrics and music of the song and claiming a $150,000
penalty if WSOF used the song in the documentary without permission.
So due to these troubles and denied
requests, the WSOF has hired Rifkin and Newman to sue TRO-Ludlow Music in order
to release the song into the public domain and to collect money on behalf of
all those who have been paying royalties to the unlawful owners of the
copyright.
In order to make their case, the
plaintiffs have made multiple arguments to show that the defendant’s exclusive
copyright is unlawful. The first argument is that the familiar lyrics and
melody of the song pre-date the defendant’s copyrighted work and had already
been part of tradition for decades. According to the legal complain, the
familiar lyrics aforementioned are believed to have first been printed in 1909
in the United Mine Workers Journal.
This journal states that the song had been performed in 1908 and much earlier
with the front page saying: “Last year at a strike [in Alabama], we opened
every meeting with a prayer, and singing that good old song, ‘We Will
Overcome.” There was no copyright on the work at this time, nor in the 1940s
when the song was adapted by tobacco workers on strike in Charleston, South
Carolina.
1948 was the first year the song was
printed with an attribution to an author of the song. People’s Songs, Inc.
published a periodical in September of that year including the song and
claiming the authors to be the FTA, CIO, and Highlander Folk School. This first
copyrighted work containing the song, however, retired its rights in 1976. Over
the decades following this work, the song had many uses and many added lyrics
and verses which came under copyright.
Finally, in 1960 the defendant
Ludlow’s copyright comes into play. Ludlow filed for a copyright of “We Shall
Overcome” as an unpublished derivative work. This copyright filing includes
five verses of the song, including the familiar first verse aforementioned.
Ludlow Music filed an additional copyright registration for “We Shall Overcome”
in 1963 adding three more verses to the preceding five. So even though the
familiar first verse and melody of the song had been printed in distributed and
performed for at least five decades before Ludlow Music requested a copyright
on the work, they still claim that those familiar lyrics and melody belong to
them exclusively.
Another
argument has been made by the complaint that the copyrights held by Ludlow have
been divested time and time again, thus rendering the copyright again invalid. This
argument is made by providing six examples from the 1960s of lyric and song uses
published with the knowledge and permission of Ludlow without any copyright
notice whatsoever. In their argument, this by definition is an explicit
divestment of the rights
of the copyright they held.
A third
argument made by the plaintiff is that Pete Seeger, a writer credited in Ludlow
Music’s 1963 copyright, openly admitted multiple times to not having been the
initial writer of the song. In the 1998 Smithsonian Folkways Recordings, the
liner notes (sponsored by Seeger) say:
“The Song was probably adapted
from the 19th century hymn, ‘I’ll Be All Right,’
although Rev. Charles Tindley’s
1903 composition, ‘I’ll Overcome Some
Day,’ is also a possible source…In
any case, Zilphia Horton of the Highlander Folk School in Tennessee heard Black
tobacco workers singing it on a picket line in 1946…According
to Pete, “This song undoubtedly has many meaning to many people... The very
best verse was made up in Montgomery, Alabama, the city of the 1956 bus
boycott: ‘We are not afraid — today!’”
So it is clear that
Seeger did not even claim to have written the song. In fact, the reason he
copyrighted the work was so that the song did not go the same route as “The
Lion Sleeps Tonight” by The Tokens and turn into a pop song. However
well-intentioned that may be, he did not write the song and thus can’t
copyright it.
Therefore, with all these arguments
in mind, the plaintiffs WSOF and those in the class whom they will represent
are asking the court to judge that the defendants have acted outside of U.S.
Copyright Law in enforcing rights that they do not own. They are asking for an
injunction to keep the defendants from claiming ownership any further and
asking for restitution for all fees that have been made prior to this point.
They are also claiming that the defendants are guilty of deceptive acts and
practices in violation of New York General Business Law allowing them to gain
large sums of money. And finally, the complaint outlines that the defendants
have breached contract with the plaintiff by violating the representations and
warranties made in mechanical licensing agreements.
From my reading of the history of
the song and the complaint written by attorneys Randall Newman and Mark Rifkin,
it appears to me that TRO-Ludlow Music will lose this court case and will owe
large sums of money to all those they have wrongfully taken from. These
attorneys were successful in releasing “Happy Birthday To You” from copyright
last year and will rightly do the same in this case. “We Shall Overcome”, at
least the familiar lyrics and melody that are so well-known, belong in the
public domain with access for all. And those who have wrongly limited that
access and monetized it should be held accountable in this case.
