The Library of Congress has called “We Shall Overcome” the “most powerful song of the 20th Century” for its galvanizing role in the 1960s civil rights struggle. For filmmakers, it is a seemingly indispensible element of any story that touches on the civil rights era. It is also, however, subject to copyright protection, and such uses must generally be licensed from the publisher, in this case Ludlow Music, Inc. In 2013, director Lee Daniels sought to license the song for use in his feature film “The Butler.” He was quoted a price of $100,000 for his proposed use, and ultimately paid $15,000 for a scaled back use of 10 seconds or less, to keep the cost within his film’s budget. In early 2015, another film producer, the We Shall Overcome Foundation (WSOF), sought to use the song in a documentary, was refused a license by Ludlow, and was thus unable to complete its film.

Believing that the song was likely in the public domain, WSOF and Daniels filed a putative class-action suit against Ludlow, seeking a declaration that Ludlow did not have the rights it claimed because the changes made to an earlier, public domain version were insufficiently original to qualify for copyright protection. In addition, plaintiffs claimed that the copyright was invalid because of defects in the registration for the song, fraudulent procurement of the registration, and publication of the song without proper copyright notice. Plaintiffs also asserted four claims under New York state law, all premised on Ludlow’s alleged inability to establish its ownership of copyright in the song it was purporting to license.

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