In an opinion yesterday, Judge Cote granted in part and denied in part a motion to dismiss a case challenging the copyright to “We Shall Overcome,” the unofficial anthem of the U.S. civil rights movement.  (See our prior post on the case here.)

The defendant copyright owners argued that the copyrighted song was sufficiently different from songs in the public domain to merit copyright protection as a matter of law, but Judge Cote found that the question was not so clear that it could be resolved on a motion to dismiss.  She also found that there fact questions as to whether the original copyright was obtained by fraud:

The Plaintiffs have plausibly alleged fraud on the Copyright Office. They principally allege that the Defendants deliberately omitted from their application for a copyright in a derivative work all reference to the public domain spiritual or the publications of “I Shall Overcome” and “We Shall Overcome” as antecedents to the Song, opting instead to list the previously registered song “I’ll Overcome” as the work from which the Song was derived. The Plaintiffs allege as well that there was an insufficient basis for listing as authors of the Song the persons identified in the application. These allegations of fraud are sufficiently specific, and provide enough information from which to infer the requisite intent, to survive a motion to dismiss.