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Effort to Free Civil Rights Anthem May Hinge on Difference Between “Will” and “Shall”

How exactly did an African-American spiritual from the 19th century become “We Shall Overcome,” an iconic anthem during the civil rights era? And does this song belong in the public domain or must those who wish to use it in movies and television shows get permission and pay license fees? A federal judge is set to provide some answers in a legal battle that’s got something for historians, grammar nerds, activists and, of course, copyright nuts.

Nearly a year and a half ago, The Richmond Organization and Ludlow Music were sued in a bid to have “We Shall Overcome” declared free for all. The legal campaign comes from the same lawyers who fought a similar battle over “Happy Birthday to You.” After attorneys at Wolf Haldenstein went to court over “We Shall Overcome,” the production company behind Lee Daniels’ The Butler joined in the effort and stated in court papers that they backed off of using more of the anthem in its movie thanks to a $100,000 licensing demand. Not to be painted as a villain, the defendant has emphasized that royalties from the song are donated to support art and research projects in the African-American community as well as the preservation of Civil Rights Movement documents.

Now, both sides have presented summary judgment papers. The key issue appears to be whether there were copyrightable contributions to the song reflected in two registrations from the early 1960s. Neither side is disputing that the song derived from an old African-American spiritual. But the defendants believe that after the song was adopted and popularized by labor protesters in the 1940s, folk singer Pete Seeger made contributions including changing “We Will Overcome” to “We Shall Overcome.” According to the Richmond Organization, Seeger also changed the lyrics from “down in my heart” to “deep in my heart” and added two new verses while other authors on the copyright registration made their own contributions.

Nonsense, say the plaintiffs.

Their summary judgment brief asserts that the copyright registrations are “bogus,” that the adaptation has the “same melody and nearly the same lyrics” as the spiritual, and the publishers “do not know who wrote what.”

Among the plaintiffs’ showcase pieces of evidence are prior publications of song lyrics, which they assert had the effect of divesting rights, plus various statements over the years from Seeger expressing both confusion about authorship as well as a demand he not be on copyright papers. The alleged inaccuracies and misrepresentations to the Copyright Office, they add, amount to a “fraud” that requires the copyrights be invalidated.

The publishers respond unkindly to the proposition that the official narrative over what the Library of Congress has called “the most powerful song of the 20th Century” is one big lie.

“Plaintiffs waited until nearly every person with first-hand knowledge of many of the issues they raise (regarding authorship, permission and registration) has passed away,” states the brief from the Richmond Organization and Ludlow. “They seize upon a few vague, inconsistent statements from Pete Seeger, one of the most humble, well-meaning, conscientious and just-plain-good humans to ever grace the earth, and impute such nastiness and cynicism to him (and Defendants) and indeed to the very concept of Seeger’s copyrightable contributions to a song which, since its inception, has paid all writer royalties to charity. Fortunately, Plaintiffs have no hope of meeting their burden on this Motion.”

The publishers are trumpeting their own historical find — a tape recording of Seeger telling Ludlow manager Al Brackman in 1963 how he changed “will” to “shall” and “down to “deep.”

Other pieces of evidence showing as much are submitted as well, and if the defendants overcome what appears to be a forthcoming challenge as to the admissibility of much of this evidence, a judge will have to decide what’s meaningful.

The legal campaign to free “We Shall Overcome” argues that a change like “will” to “shall” is “patently trivial and insignificant: the words are at most different grammatical variations of the future tense. Folk music does not observe such grammatical formalities; rather folk music is filled with lyrical expressions that do not conform to grammatical rules or norms.”

The publishers, represented by Paul LiCalsi and Ofer Reger at Robins Kaplan, offer a much different take.

“The words will and shall have different meanings, and certainly did at the time that the two songs at issue were being developed and printed for the first time — i.e., the middle of the 20th century,” writes LiCalsi. “While the applicable rule of prescriptive English grammar has been described as complex, it was fairly clear. In the context of the first person (I and we), shall is used to form the simple future tense, while will is used to express a strong determination to do something (the roles of the words are switched in the 2nd and 3rd person). As Defendants’ expert explains, while the distinction in meaning between the two words has lost some significance as the rules of prescriptive grammar have fallen out of favor, in the time period that WSO was created, the word shall maintained its traditional difference from will and undoubtedly carried a sense of learning, gravitas and solemnity that was absent in will.”

Continuing, LiCalsi adds that changes reflected amplified the different meaning. He argues, “The phrase ‘we will overcome’ is about strength and determination, force, action; ‘we shall overcome’ is about faith in the future despite formidable obstacles.”

This case presents other issues that may impact future battles over ownership. Whether copyright registrations create a presumption of validity and whose burden it is to prove invalidity are high among them, especially when the exercise is deciding what to do with something created decades — even centuries — ago. Here’s the full summary judgment memorandum from the plaintiffs as well as the opposition memorandum from the publishers.

This article originally appeared on the Hollywood Reporter.