Lee Daniels’ The Butler, a highly-acclaimed 2013 film portraying the life of an African American man who served as a butler at the White House for eight presidents, presented a unique look into the evolution of freedom and equality for African Americans and the atrocities faced by African Americans during the 1950s and 60s. We Shall Overcome, an iconic anthem of the Civil Rights Movement, seemed to be the perfect fit for this biopic; however, it was practically absent from the film. The publishers who own We Shall Overcome, Ludlow Music and The Richmond Organization, requested an exorbitant fee for use of the song—$100,000. Although an agreement was reached for a reduced fee, the song was only included in the film for a mere 10 seconds.
The chorus of this historic song played a prominent role in the Civil Rights era, sung by many and likely learned as a consequence of enduring the struggles faced by African Americans at that time. As a result, ownership of copyright in the song has become a controversial issue. Because of these peculiarities, Butler films and a documentary filmmaker affiliated with the non-profit group, “The We Shall Overcome Foundation,” brought a lawsuit against Ludlow Music and The Richmond Organization, challenging the alleged copyright registrations for We Shall Overcome held by the two publishers. The crux of the challenger’s argument is that the song should be in the public domain because it is an “unpublished derivative work.”
Determining who first authored the song We Shall Overcome is complicated—the song’s origins may go back as far as the early 1900s, when loose variations of the tune and lyrics were encompassed in hymns. The song was well-known as a strike or protest song throughout the mid-1900s. In 1960, Ludlow Music registered a copyright for a derivative, “slightly-altered” version of the song. Whether the song was slightly-altered enough to constitute a derivative will become the focus of this lawsuit. If the copyrighted version is deemed too similar to the prior folk versions, the copyright granted in 1960 will likely be ruled invalid and the song would be free to use. Releasing the song into the public domain might be what the original copyrighters wanted all along: Pete Seeger, one of the founding members of Ludlow Music, registered the song not for money, but to protect the traditional anthem from being exploited. It seems as though the tactics employed by those who currently act as the Ludlow Music publishers (fundamentally holding this song hostage) are disregarding the well-meaning intentions of their predecessors.
Interestingly, the lawyers retained by the two publishers are the same that participated in the Happy Birthday copyright case, helping release the popular song into the public domain. Perhaps Happy Birthday’s fate will serve as a positive presage for We Shall Overcome—after all, such an inspiring and historically-powerful anthem should not remain so selfishly protected.