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Happy Birthday lawyers have a go at the We Shall Overcome copyright

By Chris Cooke | Published on Thursday 14 April 2016

Good news for fans of the ‘Happy Birthday’ litigation – here comes the sequel!

Yes, the lawyers who represented a documentary maker who was making a documentary about the song ‘Happy Birthday To You’ and decided the song was actually public domain in the US are now representing a documentary maker who is making a documentary about the song ‘We Shall Overcome’ and who has decided that the song is actually public domain in the US.

Well, it’s a winning formula. Because, as previously reported, the outcome of the ‘Happy Birthday’ case was that Warner/Chappell conceded that the famous song was indeed out of copyright in the US, despite it having been happily collecting royalties every time the song was aired or performed in public over the last few decades.

In the new case two entities – the Richmond Organization and Ludlow Music – are named as defendants, the latter having registered a version of the famous protest song ‘We Shall Overcome’ with the US Copyright Office in 1960. Similar to the ‘Happy Birthday’ case, questions are now being asked about what exactly Ludlow registered in 1960, and what the ownership and copyright status was of earlier versions of the song.

Both cases are complicated because of the rules governing copyright terms in the US. Although today the copyright term in songs in America is the same as in Europe – so life of the creator plus 70 years – there were different rules in the earlier decades of the 20th century, and those rules changed over time.

Therefore quite when a work was first published and registered can have a big impact on its copyright term, with the general rule being that the earlier the copyright was enshrined, the shorter the term would have been, and the more likely it is that the copyright would have already expired, making the song public domain.

Whereas with ‘Happy Birthday’ we did know where the song originated from and who wrote it – we just weren’t sure when the specific ‘Happy Birthday’ lyrics were added – with ‘We Shall Overcome’ the origins of the song are much less clear, because a 1909 journal refers to a work called ‘We Will Overcome’, thought to be an earlier version, as “that good old song”. Others have traced the piece well back into the nineteenth century.

Meanwhile, for copyright purposes, an organisation involving folk singer Pete Seeger published the song in a periodical in the 1940s, sometime before Ludlow Music registered its version of the work. Though Seeger did seemingly endorse that later registration, and a few years after sought permission from Ludlow when putting out a recording of the song himself.

But, says the new lawsuit from an organisation called the We Shall Overcome Foundation, the 1960 registration should only apply to certain additions made to the song at that time. By that logic, the copyright status of the original work is not known, but even if you decided that Seeger’s 1940s publication of the song had enshrined a copyright, under US law at that time the copyright would have expired some time ago.

In the end, in the ‘Happy Birthday’ litigation, all the debate around when the newer lyrics had been published and registered were not actually what resulted in the case swinging against Warner/Chappell, the key ruling there being that the sisters who wrote the song had never assigned the actual ‘Happy Birthday’ lyrics to their publisher Summy Co, the company Warner had subsequently acquired.

Quite what journey this new case will take remains to be seen. But if it is anything like the ‘Happy Birthday’ litigation, there’ll be plenty of different arguments to consider as the whole matter goes through the various motions.