It has become an anthem of liberation and a hymn of hope and peaceful resistance. And though the folks who belt it out may not be free of various forms of oppression that they protest with its singing, the iconic We Shall Overcome has been legally liberated under copyright law.
U.S. District Court Judge Denise L. Cote in New York recently has ruled that the first verse of the now legendary civil rights song has winged its way into the public domain, so all may feel free to raise their voices with:
We shall overcome. We shall overcome some day. Oh, deep in my heart I do believe. We shall overcome some day.
Her decision came in a case pursued by Wolf Haldenstein Adler Freeman & Herz. It’s the same firm that battled Warner/Chappell and won a ruling from U.S. District Judge George H. King to free Happy Birthday, with the music publisher agreeing to pay $14 million to settle the case, meaning the ubiquitous celebratory song will be enshrined in the public domain.
Two plaintiffs challenged the We Shall Overcome copyright last April: the creators of The Butler, who were charged large fees to use the song in their film; and Isaias Gamboa, who was denied a license for the song in a documentary about its history.
A storied anthem
And what a history it has! We Shall Overcome has struggled through its own long and difficult saga, with disparate claimants to the creation of its powerful message, and nearly half a century of copyright protection, including by folk legends Pete Seeger, Guy Carawan, and Frank Hamilton.
Seeger, a formidable artist and stalwart campaigner for progressive causes for decades, joined in a 1962 copyright of a version of We Shall Overcome. But as with any folk classic, the tune long had been sung by the masses before this legal protection was granted. Versions of the hymn may have popped up as early as the 17th century. Seeger and others of his day likely heard renditions of it in the late 1940s, sung by African American workers battling against their economic enslavement by trying to organize into unions in the food and tobacco industries.
The lyrics differed, chiefly with the shift then by Seeger et al between will and shall in the hopeful overcoming.
Gamboa’s documentary traces the song’s roots to I Will Overcome by Louise Shropshire, a composer and herself the grand daughter of slaves. The film maker asserts that Seeger and his colleagues—as politically aware as they might have been—commercially exploited and unfairly laid claim to ownership of the “sacred hymn” by Shropshire, a black woman from Coffee County, Ala. “The story now is that the song was essentially enslaved and now it’s free,” Gamboa has said, essentially explaining why the previous copyright holders had denied his request to license the song for his documentary.
Major or minor changes?
But just how critical, in legal terms, was the tweak made by Seeger and his co-writers of the lyrics from will to shall? The copyright holders (in We Shall Overcome Foundation et al v. The Richmond Organization Inc et al, U.S. District Court, Southern District of New York, No. 16-02725) argued that these and other changes in melody and in wording, while small, were “profound.” Seeger (see video by clicking image above) had argued that the song became popular only after he and his colleagues altered the lyrics and the driving melody, especially so it could be performed on accessible instruments like his beloved banjo.
Judge Cote disagreed, finding the change from will to shall and the defendants’ proffered melodic differentiation “lacked originality.”
While her ruling yet may be appealed that the song’s lyrics are in the public domain, the decision also may have collateral and perhaps unintended effects on some communities of color.
As National Public Radio has reported, the case, “is likely to have adverse effects on the very communities where the song has the most meaning, according to Ash-Lee Woodard-Henderson of the Highlander Center. The Tennessee nonprofit distributes half of the royalties earned by the song — around $40,000 a year — as grants. The Highlander center had announced the most recent, and now, possibly final winners of those grants literally hours before the ruling. ‘That money is going literally to all 13 of the southern states,’ Woodard-Henderson says. ‘It’s going to black communities in cities and counties, from hoods to hollers. ‘”