WEBVTT - Judge Rules `We Shall Overcome' Not Under Copyright (Audio)

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<v Speaker 1>It's the song that became the anthem of the civil

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<v Speaker 1>rights movement. Come we Sha, Come We Show. The words

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<v Speaker 1>became a rallying cry for the movement. As Martin Luther

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<v Speaker 1>King explained in a speech four days before his death,

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<v Speaker 1>deep in my heart, I do believe we shall overcome.

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<v Speaker 1>No John hands often with students and others behind tail

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<v Speaker 1>bass singing it, we shall overcome this. Sometimes we've had

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<v Speaker 1>tears and eyes when we dawned together to sing it,

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<v Speaker 1>but we still decided to sing it. You probably assumed

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<v Speaker 1>that song belongs to the public, but it didn't until

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<v Speaker 1>last week. A New York federal judge struck down the

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<v Speaker 1>copyright for the first verse of the song. Joining Me

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<v Speaker 1>is the attorney who won that judgment. It's leading the

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<v Speaker 1>class action against the music publishers who claimed to hold

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<v Speaker 1>the copyright. If we shall overcome? Mark Rifkin, a partner

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<v Speaker 1>at Wolf halden Stein, Mark, why did your clients decide

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<v Speaker 1>to challenge the copyright June? For them, this was such

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<v Speaker 1>an important song, such an iconic song, and so important

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<v Speaker 1>in the freedom struggle and in the story to tell

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<v Speaker 1>about the freedom struggle that they believed the song had

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<v Speaker 1>to be put back in the public domain where it

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<v Speaker 1>began in the nineties before before Ludlow filed a copyright

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<v Speaker 1>for the song and tell me who your clients were,

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<v Speaker 1>So we represent We represent two clients in the case.

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<v Speaker 1>The first is UH though we shall Overcome Foundation, a

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<v Speaker 1>nonprofit organization that was producing a movie and still will

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<v Speaker 1>release the movie about the song, the history of the song,

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<v Speaker 1>and to use the song in the movie, they had

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<v Speaker 1>to pay a royalty to Ludlow Music to be able

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<v Speaker 1>to do that. And our other client in the case

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<v Speaker 1>is Butler Films. They produced the famous movie Lee Daniels

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<v Speaker 1>The Butler and and they too had to pay a

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<v Speaker 1>fee to use the song and in fact only use

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<v Speaker 1>the song for a couple of seconds in the movie

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<v Speaker 1>because of the amount of money that was demanded by

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<v Speaker 1>Ludlow to use the song. The song has been traced

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<v Speaker 1>back to spirituals how to get copyright protection in the

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<v Speaker 1>first place, The song has its origin as at least

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<v Speaker 1>here in this country as a Negro spiritual and UH

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<v Speaker 1>we were able to date the song at least back

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<v Speaker 1>to the turn of the twentieth century, so early nine hundreds.

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<v Speaker 1>It was published by a magazine that was owned in

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<v Speaker 1>part by Pete Seeger as we Will Overcome, with virtually

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<v Speaker 1>the same lyrics and virtually the same melody, but without

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<v Speaker 1>a copyright. In nineteen sixty, the music publisher Music decided

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<v Speaker 1>that it would copyright what was otherwise a public domain

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<v Speaker 1>work on the basis of a couple of tiny and

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<v Speaker 1>insignificant changes that they identified in the song. And we

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<v Speaker 1>challenged the ability UH to copyright the the trivial and

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<v Speaker 1>insignificant changes. So what was the defendant's argument about those changes. Well,

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<v Speaker 1>there there are two lyric changes. In the famous verse

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<v Speaker 1>we will overcome became we shall overcome, and the lyric

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<v Speaker 1>U down in my heart became deep in my heart.

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<v Speaker 1>So the word will was changed to shall somewhere along

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<v Speaker 1>the line, and the word uh deep was changed to

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<v Speaker 1>down somewhere along the line. And they say they were

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<v Speaker 1>the most important changes to the song. We say they

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<v Speaker 1>were the kinds of changes that don't entitle anybody to

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<v Speaker 1>a copyright. And we also said, in this case, there

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<v Speaker 1>was no conclusive proof who made those changes in the

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<v Speaker 1>first place. So the judge agreed with you. And but

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<v Speaker 1>just about the first verse, Well, the first verse and

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<v Speaker 1>the fifth verse are identical. There's eight verses to the song,

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<v Speaker 1>and and on the first verse and fifth verse, the

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<v Speaker 1>same verse that everybody recognizes. Judge Code ruled that the

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<v Speaker 1>changes to the lyrics that I just mentioned, and a

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<v Speaker 1>couple of tiny little changes literally an eighth note or

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<v Speaker 1>a quarter note in the melody were not sufficiently original

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<v Speaker 1>to warrant copyright protection. And that means that Judge Code

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<v Speaker 1>agreed with us and with our musicologist that the changes

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<v Speaker 1>were the kinds of changes that any musician might make

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<v Speaker 1>in performing a song, and that doesn't create a new work,

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<v Speaker 1>and so she struck down the copyright for the for

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<v Speaker 1>the melody and for the famous lyrics on that basis.

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<v Speaker 1>So what happens with the rest of the song now, Well,

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<v Speaker 1>we have a couple of arguments to make. There's a

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<v Speaker 1>there's a trial that will begin sometime in December of

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<v Speaker 1>this year, and we intend to prove two things. First,

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<v Speaker 1>we intend to prove that the four authors that were

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<v Speaker 1>identified in the copyrights didn't write those lyrics. But but

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<v Speaker 1>as importantly, we intend to prove that Ludlow committed a

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<v Speaker 1>fraud on the copyright office and disguise the origin of

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<v Speaker 1>the song to claim copyright when they really had no

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<v Speaker 1>right to it, and the judge made said that she

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<v Speaker 1>had nothing to say about those two issues in her ruling.

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<v Speaker 1>Um tell me about Pete Seeger's connection with it, because

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<v Speaker 1>it gave it a certain um authenticity when you hear

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<v Speaker 1>that he was one of the people with the copyright.

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<v Speaker 1>What what we have discovered is that Seeger introduced the

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<v Speaker 1>song to Ludlow, to the publisher in the late nineteen fifties,

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<v Speaker 1>fifty or nineteen fifty nine. He was not on the

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<v Speaker 1>original copyright that was filed in nineteen sixty although the

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<v Speaker 1>only work that Ludlow ever specifically attributed to any particular

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<v Speaker 1>author was the two lyrical changes that they attributed to Seeger.

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<v Speaker 1>We have a theory about why Seeger wasn't on the copyright,

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<v Speaker 1>and we will prove that at the trial in December.

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<v Speaker 1>But he was not on the copyright even though he

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<v Speaker 1>introduced the song to Ludlow, and and he was the

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<v Speaker 1>one that Ludlow says made those changes. Now you introduce

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<v Speaker 1>you sued and one over another iconic song, the Happy

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<v Speaker 1>Birthday Song, that another song that everyone thought was copyright protected.

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<v Speaker 1>Were there similarities in the two cases or in the

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<v Speaker 1>way you investigated it? Or what you found out. Similarities

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<v Speaker 1>in both cases and certainly in the way we went

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<v Speaker 1>about investigating them in in either case, the songs really

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<v Speaker 1>were public popular songs to begin with, and a publisher

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<v Speaker 1>claimed a copyright and work that had been in the

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<v Speaker 1>public domain long before the copyright applications were filed, and

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<v Speaker 1>similar in the way they were investigated. My partner Randy

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<v Speaker 1>Newman is an absolute genius at at ferreting out the

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<v Speaker 1>real facts and and spent months and months in both

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<v Speaker 1>cases delving into the historical record before we filed either case.

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<v Speaker 1>It's it's amazing the similarities between these two songs in

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<v Speaker 1>that so many people, I mean, I think that most

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<v Speaker 1>people would think that these songs were in the public domain,

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<v Speaker 1>and especially I'm a Happy Birthday and you've heard this

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<v Speaker 1>as a civil rights anthem for so long and in

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<v Speaker 1>so many places. Yeah, I think the common thread here

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<v Speaker 1>is that they are both public works, they are original

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<v Speaker 1>to uh the public really um and and what we

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<v Speaker 1>have is a misuse of copyright. We're going to hear

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<v Speaker 1>more about this or taking it to trial. That's Mark Rifkin,

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<v Speaker 1>he's a partner at Wolf holden Stein. That's it for

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<v Speaker 1>this edition. Of Bloomberg Law thanks to our producer David

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<v Speaker 1>Suckerman and our technical director Reginald Bazil. Coming up next

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<v Speaker 1>Bloomberg Markets with Carol Masser and Corey Johnson. I'm June Grossa.

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<v Speaker 1>You've been listening to Bloomberg Law. This is Bloomberg