Speaker 1: It's the song that became the anthem of the civil
Speaker 1: rights movement. Come we Sha, Come We Show. The words
Speaker 1: became a rallying cry for the movement. As Martin Luther
Speaker 1: King explained in a speech four days before his death,
Speaker 1: deep in my heart, I do believe we shall overcome.
Speaker 1: No John hands often with students and others behind tail
Speaker 1: bass singing it, we shall overcome this. Sometimes we've had
Speaker 1: tears and eyes when we dawned together to sing it,
Speaker 1: but we still decided to sing it. You probably assumed
Speaker 1: that song belongs to the public, but it didn't until
Speaker 1: last week. A New York federal judge struck down the
Speaker 1: copyright for the first verse of the song. Joining Me
Speaker 1: is the attorney who won that judgment. It's leading the
Speaker 1: class action against the music publishers who claimed to hold
Speaker 1: the copyright. If we shall overcome? Mark Rifkin, a partner
Speaker 1: at Wolf halden Stein, Mark, why did your clients decide
Speaker 1: to challenge the copyright June? For them, this was such
Speaker 1: an important song, such an iconic song, and so important
Speaker 1: in the freedom struggle and in the story to tell
Speaker 1: about the freedom struggle that they believed the song had
Speaker 1: to be put back in the public domain where it
Speaker 1: began in the nineties before before Ludlow filed a copyright
Speaker 1: for the song and tell me who your clients were,
Speaker 1: So we represent We represent two clients in the case.
Speaker 1: The first is UH though we shall Overcome Foundation, a
Speaker 1: nonprofit organization that was producing a movie and still will
Speaker 1: release the movie about the song, the history of the song,
Speaker 1: and to use the song in the movie, they had
Speaker 1: to pay a royalty to Ludlow Music to be able
Speaker 1: to do that. And our other client in the case
Speaker 1: is Butler Films. They produced the famous movie Lee Daniels
Speaker 1: The Butler and and they too had to pay a
Speaker 1: fee to use the song and in fact only use
Speaker 1: the song for a couple of seconds in the movie
Speaker 1: because of the amount of money that was demanded by
Speaker 1: Ludlow to use the song. The song has been traced
Speaker 1: back to spirituals how to get copyright protection in the
Speaker 1: first place, The song has its origin as at least
Speaker 1: here in this country as a Negro spiritual and UH
Speaker 1: we were able to date the song at least back
Speaker 1: to the turn of the twentieth century, so early nine hundreds.
Speaker 1: It was published by a magazine that was owned in
Speaker 1: part by Pete Seeger as we Will Overcome, with virtually
Speaker 1: the same lyrics and virtually the same melody, but without
Speaker 1: a copyright. In nineteen sixty, the music publisher Music decided
Speaker 1: that it would copyright what was otherwise a public domain
Speaker 1: work on the basis of a couple of tiny and
Speaker 1: insignificant changes that they identified in the song. And we
Speaker 1: challenged the ability UH to copyright the the trivial and
Speaker 1: insignificant changes. So what was the defendant's argument about those changes. Well,
Speaker 1: there there are two lyric changes. In the famous verse
Speaker 1: we will overcome became we shall overcome, and the lyric
Speaker 1: U down in my heart became deep in my heart.
Speaker 1: So the word will was changed to shall somewhere along
Speaker 1: the line, and the word uh deep was changed to
Speaker 1: down somewhere along the line. And they say they were
Speaker 1: the most important changes to the song. We say they
Speaker 1: were the kinds of changes that don't entitle anybody to
Speaker 1: a copyright. And we also said, in this case, there
Speaker 1: was no conclusive proof who made those changes in the
Speaker 1: first place. So the judge agreed with you. And but
Speaker 1: just about the first verse, Well, the first verse and
Speaker 1: the fifth verse are identical. There's eight verses to the song,
Speaker 1: and and on the first verse and fifth verse, the
Speaker 1: same verse that everybody recognizes. Judge Code ruled that the
Speaker 1: changes to the lyrics that I just mentioned, and a
Speaker 1: couple of tiny little changes literally an eighth note or
Speaker 1: a quarter note in the melody were not sufficiently original
Speaker 1: to warrant copyright protection. And that means that Judge Code
Speaker 1: agreed with us and with our musicologist that the changes
Speaker 1: were the kinds of changes that any musician might make
Speaker 1: in performing a song, and that doesn't create a new work,
Speaker 1: and so she struck down the copyright for the for
Speaker 1: the melody and for the famous lyrics on that basis.
Speaker 1: So what happens with the rest of the song now, Well,
Speaker 1: we have a couple of arguments to make. There's a
Speaker 1: there's a trial that will begin sometime in December of
Speaker 1: this year, and we intend to prove two things. First,
Speaker 1: we intend to prove that the four authors that were
Speaker 1: identified in the copyrights didn't write those lyrics. But but
Speaker 1: as importantly, we intend to prove that Ludlow committed a
Speaker 1: fraud on the copyright office and disguise the origin of
Speaker 1: the song to claim copyright when they really had no
Speaker 1: right to it, and the judge made said that she
Speaker 1: had nothing to say about those two issues in her ruling.
Speaker 1: Um tell me about Pete Seeger's connection with it, because
Speaker 1: it gave it a certain um authenticity when you hear
Speaker 1: that he was one of the people with the copyright.
Speaker 1: What what we have discovered is that Seeger introduced the
Speaker 1: song to Ludlow, to the publisher in the late nineteen fifties,
Speaker 1: fifty or nineteen fifty nine. He was not on the
Speaker 1: original copyright that was filed in nineteen sixty although the
Speaker 1: only work that Ludlow ever specifically attributed to any particular
Speaker 1: author was the two lyrical changes that they attributed to Seeger.
Speaker 1: We have a theory about why Seeger wasn't on the copyright,
Speaker 1: and we will prove that at the trial in December.
Speaker 1: But he was not on the copyright even though he
Speaker 1: introduced the song to Ludlow, and and he was the
Speaker 1: one that Ludlow says made those changes. Now you introduce
Speaker 1: you sued and one over another iconic song, the Happy
Speaker 1: Birthday Song, that another song that everyone thought was copyright protected.
Speaker 1: Were there similarities in the two cases or in the
Speaker 1: way you investigated it? Or what you found out. Similarities
Speaker 1: in both cases and certainly in the way we went
Speaker 1: about investigating them in in either case, the songs really
Speaker 1: were public popular songs to begin with, and a publisher
Speaker 1: claimed a copyright and work that had been in the
Speaker 1: public domain long before the copyright applications were filed, and
Speaker 1: similar in the way they were investigated. My partner Randy
Speaker 1: Newman is an absolute genius at at ferreting out the
Speaker 1: real facts and and spent months and months in both
Speaker 1: cases delving into the historical record before we filed either case.
Speaker 1: It's it's amazing the similarities between these two songs in
Speaker 1: that so many people, I mean, I think that most
Speaker 1: people would think that these songs were in the public domain,
Speaker 1: and especially I'm a Happy Birthday and you've heard this
Speaker 1: as a civil rights anthem for so long and in
Speaker 1: so many places. Yeah, I think the common thread here
Speaker 1: is that they are both public works, they are original
Speaker 1: to uh the public really um and and what we
Speaker 1: have is a misuse of copyright. We're going to hear
Speaker 1: more about this or taking it to trial. That's Mark Rifkin,
Speaker 1: he's a partner at Wolf holden Stein. That's it for
Speaker 1: this edition. Of Bloomberg Law thanks to our producer David
Speaker 1: Suckerman and our technical director Reginald Bazil. Coming up next
Speaker 1: Bloomberg Markets with Carol Masser and Corey Johnson. I'm June Grossa.
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