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In dispute over whether civil rights anthem “We Shall Overcome” is in public domain, district court refuses to dismiss copyright infringement claims on a motion to dismiss, holding plaintiffs plausibly alleged (1) defendants’ copyright interest in song’s first verse lacked sufficient originality, as only three words were changed from earlier version, (2) divestive publication without notice by defendants, and (3) fraud by defendants on the Copyright Office.
The We Shall Overcome Foundation and Butler Films LLC brought a putative class action against The Richmond Organization Inc. and its subsidiary Ludlow Music Inc. to challenge defendants’ copyright interest in the song “We Shall Overcome,” an American folk song strongly associated with the Civil Rights Movement. Plaintiffs sought a declaratory judgment that defendants’ two copyrights on the song do not cover the melody or the “familiar lyrics” found in the first verse of the song because those are in the public domain. Plaintiffs further alleged that defendants fraudulently obtained their copyrights in the song and those copyrights had been forfeited when the song was published without the required notice. They also asserted four New York state law claims. Defendants moved to dismiss and the district court denied their motion in part, dismissing only the state law claims as preempted by the federal Copyright Act.
The song “We Shall Overcome” originated as an African-American spiritual and hymn with its first known printed reference in 1909. The song has since been used as a protest song by laborers and the Civil Rights Movement. The lyrics and music for the song were later published by an organization founded by American folk singer Pete Seeger in a 1948 magazine. In 1960 and 1963, defendants filed copyright registrations for “We Shall Overcome” as previously unpublished derivative works, collectively covering eight verses of lyrics, with the first and fifth verses consisting of the familiar lyrics of the song.
In their motion to dismiss, defendants argued that the lyrics in the first verse of the song are original and entitled to copyright protection. However, the district court found that because the works were registered as derivative works, copyright protection could only extend to the material contributed by the authors of the derivative works, and that this material must demonstrate a sufficient level of originality. Comparing defendants’ two copyrighted versions of the song to the version published in 1948, the district court pointed out that the only differences in the first-verse lyrics were changes to three words: “I’ll” was changed to “we’ll,” “will” was changed to “shall” and “down” was changed to “deep.” Additionally, it found plaintiffs plausibly alleged that these words were changed by individuals other than the authors listed in defendants’ copyright registrations.
Defendants also argued that their possession of copyright registrations in “We Shall Overcome” constituted prima facieevidence of the validity of their copyrights. The district court noted that presumptions of copyright validity may be rebutted where other evidence casts doubt on that validity, and determined that plaintiffs plausibly alleged that the lyrics in the first verse of the song were copied from material in the public domain.
Defendants also sought to dismiss the claim that their copyrights were fraudulently obtained from the Copyright Office. Plaintiffs argued defendants deliberately omitted from their copyright applications for “We Shall Overcome” any reference to the public domain spiritual or other prior publications of variations of the song. The district court found plaintiffs’ allegations plausible and sufficiently specific to infer the intent required to invalidate the copyrights, and therefore refused to dismiss the claim. Last, it refused to dismiss plaintiffs’ claims that defendants’ copyrights were forfeited and the works placed in the public domain because they were published without the notice required under the 1909 Copyright Act.
The district court did, however, agree to dismiss plaintiffs’ four state law claims as preempted by federal copyright law. It pointed out that plaintiffs’ claims met the two-prong test under Section 301 of the Copyright Act because they involve works within the subject matter of copyright and the rights being asserted in plaintiffs’ state law claims were equivalent to the exclusive rights within the general scope of copyright.