'We shall overcome' song moves closer to trial

The suit was filed in April on behalf of a non-profit group called the We Shall Overcome Foundation, and later joined by the producers of the 2013 film "Lee Daniels' The Butler"

“We Shall Overcome” may be headed for a trial.

The song, famous as a civil rights anthem — and revived in recent years for numerous vigils across the country in response to gun violence — is the subject of a lawsuit that challenges the validity of the song’s copyright.

Along with the recent suits involving “Happy Birthday to You” and Woody Guthrie’s “This Land Is Your Land,” the case has focused attention on one of the central questions in copyright: finding a balance between protecting intellectual property on behalf of private owners, and giving the public access to famous songs whose origins may be murky.

For “We Shall Overcome” and “This Land,” the issue is also freighted with politics at a time when the songs are being embraced by protesters and activists on multiple sides of major issues. The suit over “We Shall Overcome” was filed in April on behalf of a nonprofit group called the We Shall Overcome Foundation, and later joined by the producers of the 2013 film “Lee Daniels’ The Butler.” It argues that the song — which was adapted from a 19th-century black spiritual, although its origins may date back even further — should be declared part of the public domain. The suit also argues that the version of the song registered for copyright in 1960 and 1963, by Pete Seeger and others, includes only minor alterations that are not enough to justify a copyrightable variation, like changing the line “We will overcome” to “We shall overcome.”

The Richmond Organization, the publisher of the song, asked for the copyright claims to be dismissed, saying that even those small changes are sufficient to establish a copyrightable variation.

In a ruling on Monday, Judge Denise L Cote, of United States District Court in Manhattan, declined to dismiss the case’s copyright claims, saying that the plaintiffs in the case had “plausibly alleged” that the first verse “lacks originality.” She also said that the song’s registered authors — Seeger, Zilphia Horton, Frank Hamilton and Guy Carawan — may not be the ones who made crucial changes to the lyrics;  Seeger, who died in 2014, said that it was not clear, for example, who had changed “will” to “shall.” In her ruling, Judge Cote said that “issues of originality and authorship will require discovery and a more developed record,” and that the case could now be decided through summary judgment or at trial.

Paul V LiCalsi, a lawyer for The Richmond Organization, said in response to the ruling, “I think we are going to be able to show, with discovery, that the lyrical changes that were made were profound and important.”

Mark C Rifkin, a lawyer for the plaintiffs, said in a statement: “This is a major step in the plaintiffs’ effort to return this historic and important song to the public, where it belongs.”

Rifkin and his firm, Wolf Haldenstein Adler Freeman & Herz, also represent the plaintiffs in the case involving “This Land Is Your Land,” and also won the case involving “Happy Birthday,” which in June was declared by a federal judge to be part of the public domain.

© 2016 The New York Times News Service