"We Shall Overcome," a song that was the "unofficial anthem to the civil rights movement," was wrongly placed under copyright and should be put in the public domain, according to a lawsuit filed yesterday in federal court. The complaint (PDF) was filed by the same group of lawyers who succeeded at putting the world's most famous song, Happy Birthday, into the public domain after years of litigation. It's a proposed class action that seeks the return of copyright licensing fees they say were wrongfully collected by Ludlow Music Inc. and The Richmond Organization, which claim to have copyrighted "We Shall Overcome" in 1960.

According to the lawsuit, the song is much older than that. The plaintiffs say the song is based on "an African-American spiritual with exactly the same melody and nearly identical lyrics from the late 19th or early 20th century."

At most, they say, the defendant companies own specific arrangements of the song, or additional verses that were added in 1960 when the song was copyrighted and again in 1963.

Once more, the lawyers' chief client is a documentary filmmaker making a movie about the song in question. The named plaintiff is the We Shall Overcome Foundation, an organization created by the filmmakers. The foundation intends to make a movie about the song, and include a performance of it in "at least one scene in the movie."

"This was never copyrightable to begin with," Mark Rifkin, an attorney for the plaintiff, told Reuters Tuesday. "The song had been in the public domain for many, many years before anyone tried to copyright it."

A person who answered the phone at The Richmond Organization declined to comment on the case.

Difficult to Clear

In early 2015, the filmmakers got in touch with The Richmond Organization and Ludlow Music, to inquire about playing the song in their movie. "WE SHALL OVERCOME is a difficult song to clear," a representative told them. "I have been advised by our historians that we will need to review the recording that is intended to be used. The song cannot be cleared without reviewing what’s being sung and the quality of the representation of the song."

The filmmakers hired a singer named Nephertiri Lewis to record the first verse of We Shall Overcome, and submitted the recording. A month later they got their response: "The song is not available for the proposed use." The movie-makers, who aren't named in the lawsuit, repeatedly asked why they couldn't get a license for the song. On May 12, 2015, they got an emailed response reading in part:

As previously mentioned to you WE SHALL OVERCOME is not available for use. Permission for the use of WE SHALL OVERCOME as described in your request is not granted. No other information is available. TRO-Ludlow Music, Inc. reserves all rights under the United States Copyright law in connection with this usage.

The African-American spiritual may date to the 19th century, but the plaintiffs say the song was first printed in the February 1909 issue of the United Mine Workers Journal. "Last year at a strike [in Alabama], we opened every meeting with a prayer, and singing that good old song, 'We Will Overcome,'" the journal stated on the front page.

Striking tobacco workers sang the song in the 1940s during a strike in South Carolina.

Peoples' Songs Inc., a company created by legendary folk singer Pete Seeger, published a songbook in 1948 that included the song. "This simple and moving hymn tune becomes especially thrilling when you consider where the song was first sung," the songbook stated. "It was learned by Zilphia Horton of the Highlander Folk School, in Tennessee, from members of the ClO Food and Tobacco Workers Union."

Seeger, who died in 2014, made public statements echoing that story. In the liner notes of a 1998 album called If I Had A Hammer: Songs of Hope & Struggle, Seeger said that he learned the song from Horton, who "heard Black tobacco workers singing it on a picket line in 1946."

In other writings, Seeger said that "no one knows who changed 'will' to 'shall.'"

The lawsuit asks to form a class, get a judicial order placing the song in the public domain, and return the collected licensing fees to those who paid them.