Fight to Return ‘We Shall Overcome’ to the Public Advances

MANHATTAN (CN) — The Library of Congress has called “We Shall Overcome” the “most powerful song of the 20th century” – but a federal judge advanced claims that two record labels may have defrauded the U.S. Copyright Office in claiming ownership over the civil-rights anthem.

The Nov. 21 ruling marks the first victory for the producer of the 2013 film, “The Butler,” and the We Shall Overcome Foundation, a California-based nonprofit group at the forefront of the class action lawsuit filed against the Richmond Organization and Ludlow Music in April.

The foundation hopes to use “We Shall Overcome” in a documentary about the history and origins of the anthem.

“Without the song, they can’t do the film,” the plaintiffs’ attorney, Mark Rifkin, said in a phone interview.

Hoping to dissolve the song’s 1960 and 1963 registered copyrights, the duo retained attorneys from Wolf Haldenstein Alder Freeeman & Herz — the same law firm that liberated “Happy Birthday” last year.

Rifkin is a partner in the firm, which may be on track for a similar success in this case, since U.S. District Judge Denise Cote accepted their argument that the copyright-owning record labels misled the government.

“An allegation that an applicant for a copyright engaged in fraud is a serious matter,” the 33-page opinion, filed in the Southern District of New York, states. “It is the Copyright Office that determines whether a filer has complied with the technical requirements for a registration certificate.”

Cote found Monday that the filmmaker and the foundation “plausibly alleged” such a case.

According to the lawsuit, the labels scrubbed all references to public domain spiritual versions of “I Shall Overcome” and “We Shall Overcome” on their copyright application, and they cited “I’ll Overcome” as the derivative work.

“These allegations of fraud are sufficiently specific, and provide enough information from which to infer the requisite intent, to survive a motion to dismiss,” Cote wrote.

Rifkin said he was “delighted” by the judge’s decision.

“The song itself is a song of hope, and a song of freedom, and it is no small irony that it has taken 21st century lawyers to free a late-19th century or early-20th century African-American spiritual,” he said.

Rifkin urged the public to see the human toll behind the intellectual property suit.

“The misuse of a copyright has profound human consequence for these two clients and generally for the public,” he said.

In addition to “Happy Birthday” and “We Shall Overcome,” Rifkin’s firm is also trying to deliver Woody Guthrie’s “This Land Is Your Land” to the people.

In the lawsuit at hand, only the federal claims will proceed to discovery, as Cote dismissed the state law claims.

“We are extremely pleased that the state law claims were dismissed, and are very confident that on the full record the validity of the copyright will be upheld,” Paul LiCalsi, an attorney for the record companies, said in an email. “The song is a protected derivative work that was validly registered with the Copyright Office.”

LiCalsi is a partner with Robins Kaplan LLP out of New York City.

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