We Shall Overcome Foundation v. The Richmond Org., No. 16-cv-2725 (S.D.N.Y. Sep. 2017) (Cote, J.).
In a putative class action challenging the validity of the defendants' copyright in the folk-song "We Shall Overcome," the Court granted plaintiffs partial summary judgment finding that the lyrics and melody of the first verse (repeated as the 5th verse) of the song are not sufficiently original to qualify for copyright registration as a derivative work. After going through the history of various publications and registrations of the song, the Court held that the defendants could not rely upon their copyright registration's presumption of validity because the defendants had submitted sufficient evidence to rebut the presumption: "They have shown that the Defendants’ 1960 and 1963 applications for a copyright in the Song were significantly flawed."
The next questions was whether the changes to the most well-known verse of the Song, Verse 1/5, embody the originality required for protection by the Copyright Act. A version of the song was in the public domain, so the issue was whether the changes claimed by the defendants were sufficient to qualify as a a protectable derivative work. The Court held that "the Plaintiffs have shown that the melody and lyrics of Verse 1/5 of the Song are not sufficiently original to qualify as a derivative work entitled to a copyright. As a matter of law, the alterations from the PSI Version are too trivial. A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. ... More specifically, the changes of “will” to “shall” and “down” to “deep” and the melodic differences in the opening measures and the seventh measure, do not create a distinguishable variation. These differences represent “variations of the piece that are standard fare in the music trade by any competent musician.” In other words, changing "will" to "shall" was not sufficiently original to warrant copyright protection.
The Court did, however, deny the motion for summary judgment on the issues of the authorship and divestment (by publication), and fraud on the copyright office; and partially granted a Daubert motion precluding expert testimony.