There are certain songs that live in our hearts as quintessentially American; songs that have taken their place in history and encapsulate the American spirit. Two of these songs, “This Land is Your Land” and “We Shall Overcome,” are the subject of recently filed lawsuits that seek to re-evaluate their copyright status and return them to the public domain.
Works in the public domain no longer have copyright protection, because such protections have expired or were relinquished. Public-domain works thus belong to the public and can be used without paying anyone licensing fees.
Article I, Section 8 of the U.S. Constitution empowers Congress to create a system of intellectual property “[t]o promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Many people seem to equate this with a mandate to ensure that artists are compensated for their work, or even to make a living off it (regardless of its sales). While that is a piece of the puzzle, it isn’t a complete picture; the Progress Clause requires that copyright act as an incentive, not just a reward.
Ultimately, for the arts and sciences to progress and continue to move forward, creators must have access to a robust public domain. Artists must be able to build off the works of those who came before them, just as Woody Guthrie did when he wrote “This Land is Your Land,” and just like a large number of contributors did when they formalized the lyrics and melody of “We Shall Overcome.” A quick look at these songs’ histories shows not only that the lawsuits make compelling technical arguments, but also how these songs borrowed heavily from even earlier works.
In 1940, Woody Guthrie wrote “This Land is Your Land” as a response to Irving Berlin’s “God Bless America,” a song he found irritating. The melody is almost a note for note copy of “When the World’s on Fire,” a gospel song performed by the Carter Family. In fact, his longtime friend Pete Seeger has claimed Guthrie often looked for “some tune that has proven its popularity with the people,” when setting his lyrics to music.
The lyrics, on the other hand, were original. While they were written in 1940, it was not until 1945 that Guthrie published a pamphlet that included the lyrics and sheet music. U.S. Copyright law only requires a right of publication, not registration, for a work to be protected; therefore, this 1945 publication was the start of the song’s copyright term. At the time, the copyright term was 28 years with an option to renew once (the original 1790 Copyright Act provided half that length and applied only to books, maps and charts).
Neither Guthrie nor Ludlow Music Inc., which published many of his songs, filed for renewal at the appropriate time. This means the song has been in the public domain since 1973. In fact, Ludlow’s original attempt to register the copyright was not until 1956, and their renewal followed in 1984. The 1956 copyright registration makes no mention of the song’s earlier distribution, and Ludlow’s attempt to renew the copyright was 11 years too late, based on the song’s original publication date. Ludlow, however, disputes this and continues to claim ownership of the song.
The history of “We Shall Overcome” is far more complicated. The melody is believed to derive from the 1792 hymn “O Sanctissima,” while lyrics are thought to have been developed from a 1901 hymn, “I’ll Overcome Someday.” While mention of a song called “We Will Overcome,” was made in a 1909 edition of the United Mine Workers Journal, the modern version of the song was first known to be sung in 1945, during a strike at an American Tobacco Co. cigar factory. It was during this strike that Zilphia Horton, founder of the Highlander Folk School, learned the song and took it back to her classroom.
The version from the strike was first published in 1948 and has identical lyrics to the well-known version of today, with one exception: the song states we will overcome instead of we shall overcome. The pamphlet in which the song was published, “People’s Songs,” was copyrighted in 1948 – a copyright that expired in 1976. As early as 1952, there are several mentions of the song under the title “We Shall Overcome.” While Pete Seeger is commonly credited with changing the “will” to “shall,” he himself admitted that others previously had used the word “shall.”
Beyond the uncertain authorship of the song, the filed complaint points out that the copyright registration application filed by Ludlow in 1960 only mentions verses 2 through 4 of the song to be original. These verses replace the line “we shall overcome” with “We’ll walk hand and hand,” “the truth will make us free,” and “the Lord will see us through,” respectively. Ludlow did not claim at the time that the verses using the line “We shall overcome” were original. In a similar technical complaint, the lawsuit mentions the numerous times “We Will Overcome” was published without a copyright notice, an oversight that would make the copyright invalid.
Many of the arguments made in the lawsuits rely on small details of copyright law in their attempt to invalidate Ludlow’s claim to own these songs. We should not, however, pass up the opportunity these cases bring to discuss the importance of the public domain and robust fair use to creators. Moreover, it should be noted the damage caused to creators (and to consumers) by the continual retroactive extension of copyright terms.
Both “This Land is Your Land” and “We Shall Overcome” drew heavily from past works to create their final product. History is full of similar instances in which creators were inspired by past works to create new and unique pieces of art. Shakespeare has been adapted into modern movies like “West Side Story,” “She’s the Man” and “10 Things I Hate About You.” Shakespeare himself was inspired by history and ancient mythology.
One of the greatest examples of the power of older works to inspire new creativity is the canon of Walt Disney Pictures. Their use of public domain material is arguably unmatched. Disney classics such as “Alice in Wonderland,” “Cinderella,” “Frozen” and countless others were highly derivative of works in the public domain (which is ironic, considering that every time Mickey Mouse’s copyright protection is about to expire, there’s a successful lobbying effort to promote retroactively longer copyright terms).
Songs like “This Land is Your Land” and “We Shall Overcome” are no longer able to provide monetary benefit to their authors and original performers, because they are no longer alive. Estates, however, often fight to maintain the rights to these songs in a misguided attempt to control their usage. Woody Guthrie’s daughter Nora claimed that “[their] control of this song has nothing to do with financial gain, It has to do with protecting it from Donald Trump, Protecting it from the Ku Klux Klan, protecting it from all the evil forces out there.” This mindset dangerously curbs political speech, and it does so at the expense of future creators.
Creators should absolutely be compensated for their work, but copyrights are intended to do more than that. Copyright laws should promote the interests of both current creators and future creators. Allowing songs like “This Land is Your Land” and “We Shall Overcome” to enter the public domain, whether by legal means or by the expiration of their current copyright terms, will allow other creators to produce new content inspired by cultural classics, just like artists before them did.