Copyright, Intellectual Property, Music

Can You Change Two Words To A Song And Claim A New Copyright?

Litigation over a famous anthem of the civil rights movement presents an interesting issue of IP law.

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Ed. note: Please welcome Krista L. Cox, one of our new columnists focusing on intellectual property law.

Let me propose something: I’m going to write a song, but rather than start from scratch, I’m just going to take an existing song and modify it ever so slightly, then copyright it. Everyone’s heard of the popular Christmas carol, “Jingle Bells,” right? “Jingle Bells” is in the public domain, meaning it is no longer under copyright protection and I can play it, modify it, use it in my music video, or do anything else to it without having to get a license. So here are my changes, for which I’m going to claim new copyright protection:

Ringing bells, ringing bells

Ringing all the way

Oh what a joy it is to ride

In a one-horse open sleigh

Hey!

Now say this version suddenly becomes a hit. People love this version of this old Christmas carol (yes, I know, “ringing bells” doesn’t have the same, ahem, ring as “jingle bells,” but just go with me here). Ringing bells replaces jingle bells in caroling, and twenty years from now people barely even remember a time when we said “jingle” instead.

Movie directors want to use the song in their movies because it has become a Christmas classic. Ah, but wait! They can’t without getting a license, which I’m going to charge $100,000 for them to use. Sure, the directors could use the old “Jingle Bells” instead, but that no longer has the same recognizable quality now that everyone is singing “Ringing Bells.” And, because copyright terms are now so long—extending 70 years after an author’s death—“Ringing Bells” might reasonably remain under copyright for the next 120 years. Crazy, right?

This is exactly what’s at stake in litigation over the famous civil rights movement anthem, “We Shall Overcome.” The current rightholders of “We Shall Overcome” claim that the authors to the song made significant changes—though just a couple of words—deserving of copyright protection and reportedly wanted to charge Lee Daniels $100,000 for use of the song in the movie The Butler.

Litigation began over a year ago over whether the song is still under copyright or whether it is in the public domain after the rightholder to the song refused to license “We Shall Overcome” for use in a documentary video. The plaintiffs argue that the song should be declared part of the public domain.

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Ultimately, the resolution of the case may hinge on how much of a change to an older version of the song is enough to warrant copyright protection (another issue pursued by the plaintiffs is that the authors listed on the copyright registration may not even have been the ones to change the critical leaders; the plaintiffs point to statements made at various times by one of the registered—and now deceased—co-authors). The case continues to move forward after a district court denied a motion to dismiss, and both sides recently filed briefs on a summary judgment motion.

“We Shall Overcome” was based on an old African-American spiritual, the melody of which was, itself, an adaptation of the melody of the 18th century Catholic hymn, “O Sanctcissima.” The lyrics, however, are slightly different.

The plaintiffs claim that the version under copyright made merely trivial changes to the African-American spiritual, “with the same melody and nearly the same lyrics from the late 19th or early 20th century,” the melody of which was much older. Thus, “We Shall Overcome” did not make enough changes to warrant copyright protection, and the song should be in the public domain, free for all to use.

Comparing the lyrics, the plaintiffs note that only a few words were changed between the version defendants claim copyright in, and the older public domain version. The famous version, in which defendants assert copyright, uses the following lyrics:

We shall overcome

We shall overcome

We shall overcome some day

Oh deep in my heart, I do believe

We shall overcome some day

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The older version was first printed as “We Will Overcome Some Day” in a 1909 publication, before being published (and copyrighted) in a 1948 songbook. Due to different copyright rules at that time, this older version is no longer under copyright and is in the public domain. Those lyrics are remarkably similar:

We will overcome

We will overcome

We will overcome some day

Oh down in my heart, I do believe

We will overcome some day

Essentially, defendants claim that the changes in the words from “will” to shall” and “down in my heart” to “deep in my heart” are enough to warrant copyright. There appears to be no dispute as to the fact that the melodies of the two songs are the same and that these are the only changes to this verse (at some point before publication of “We Will Overcome” in the 1909 publication, the words changed from “I” to “we”). Indeed, in the opposition to the motion for summary judgment filed a week ago, defendants do not claim more sweeping changes were made, and instead rely on the assertion that “the difference between ‘will’ and ‘shall’ is non-trivial.” Defendants assert that “[t]he iconic status of ‘We Shall Overcome,’ not ‘We Will Overcome’ speaks for itself, irrespective of the more recent declining use of the world shall in modern American English.”

In order to be copyrightable as a derivative work, the new work must “add new original copyrightable authorship.” We will (shall?) see whether these small changes were big enough to warrant copyright protection. And if a court indeed finds that it is, well, I guess that means it’s time for me to start marketing “Ringing Bells.”

UPDATE (9/11/2017): Judge Denise L. Cote (S.D.N.Y.) has ruled that the first and most famous verse of “We Shall Overcome” belongs in the public domain.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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