Last week, Judge Cote granted a motion for summary judgment challenging the copyright for the civil rights anthem “We Shall Overcome.” Plaintiffs, the We Shall Overcome Foundation, argued that the similarities between the copyrighted song and a 1948 version in the public domain meant that the first verse of the famous song was not sufficiently original to survive a copyright challenge.
Judge Cote agreed, noting the overwhelming evidence of the connection between the copyrighted version of “We Shall Overcome” and older, historical versions:
The record shows that the listed authors of the Copyrighted Song were well aware of the historic and to them venerable roots of the Song. They sought to copyright the Song in order to protect it from undesirable commercial exploitation. In opposing this motion, the Defendants emphasize their own and the listed authors’ virtuous motives. But, unless Verse 1/5 qualifies as a derivative work under the ordinary application of copyright law, that protection is unavailable for that verse. These principles regarding the creation of copyright protection for derivative works apply equally whether the original work is humble or distinguished and whether it is noble or quite the opposite. The gap in the proof of originality cannot be filled by good intentions.
Judge Cote also rejected the defendants’ argument that their copyrighted version was sufficiently different than earlier versions because the copyrighted version included the lyric “we shall overcome” instead of “we will overcome.” Judge Cote found this difference to be “quintessentially trivial.” However, Judge Cote found that other differences in the melody and lyrics (outside of the first verse) could not be resolved at the summary judgment stage.
Our full coverage of the case is here.