MANHATTAN (CN) – The civil rights anthem “We Shall Overcome” may soon be in the public domain by virtue of a class action filed over fair use of the song.
In a lawsuit filed in Manhattan Federal Court on Wednesday, the non-profit group We Shall Overcome Foundation claims that music publishers Richmond Organization and Ludlow Music Inc. have improperly enforced their 1960 and 1963 registered copyrights on the song, which should be at best limited to “the extremely narrow right to reproduced and distribute specific arrangements for the song.”
To litigate their case, the foundation hired Wolf Haldenstein Alder Freeeman & Herz -the same law firm who won the case declaring “Happy Birthday” in the public domain last year.
Besides damages, the class-action seeks a court determination on whether the 1960 and 1963 copyrights are valid. If they are not, the song-except specific arrangements with additional verses owned by the defendants-could become public domain.
The legal fracas began when the foundation, which is dedicated to helping poor and marginalized people worldwide, wanted to use “We Shall Overcome” in a forthcoming documentary and were denied by Richmond.
Richmond has “silenced those wishing to perform ‘We Shall Overcome’ by refusing to grant them a license or have unlawfully demanded and extracted licensing fees from those unwilling or unable to challenge their false ownership claims,” the lawsuit says.
The song, which is thought to be an adaptation of African-American spiritual, became known as the unofficial anthem of the Civil Rights movement in the 1950s, and was cited by President Lyndon Johnson as he promoted and later signed landmark civil rights legislation a decade later.
The foundation tried to obtain the license to the song in February 2015. The following month representatives at the company responded saying the song was “difficult to clear,” noting that it would depend on the version of the song and its quality.
After reviewing the foundation’s version, the first verse of which was performed by Nephertiri Lewis, representatives from Richmond allegedly refused to grant licensure of the song.
If used without permission, the foundation would be forced to pay as much as a $150,000 penalty.
However, according to the foundation, the song is an adaptation of an earlier spiritual with the same melody and almost identical lyrics for the first verse.
The song’s first printed reference is in a 1909 edition of the United Mine Workers Journal, which references the song being sung after prayer during strike meetings, according to the lawsuit.
The suit also casts a shadow on the legitimacy of the 1960s-era copyrights of the song, noting that a version of “We Shall Overcome” was included in the folk song periodical “People’s Songs” in 1946.
It also referenced a 1959 phonograph narrated by Charlton Heston on the biblical Exodus, in which a chorale version of the song is heard.
According to the lawsuit, because the copyright on the “People’s Songs” periodical lapsed in 1976, the song is now public domain.
Further, folk singer Pete Seeger, who published the periodical, has claimed not to have written the song.
Richmond Organization did not immediately respond to an email seeking comment.
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