Nashville musicologist helps free popular spiritual from copyrig - WSMV News 4

Nashville musicologist helps free popular spiritual from copyright law

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Joan Baez performs "We Shall Overcome" at a Civil Rights March on Washington, D.C., on Aug. 28, 1963. (WikiCommons) Joan Baez performs "We Shall Overcome" at a Civil Rights March on Washington, D.C., on Aug. 28, 1963. (WikiCommons)
Dr. E Michael Harrington, expert witness in the "We Shall Overcome" case Dr. E Michael Harrington, expert witness in the "We Shall Overcome" case

Last week in federal court, the legal team that freed "Happy Birthday from copyright has 'overcome' another hurdle in their quest to move popular tunes into the public domain -- this time, for the popular African American spiritual "We Shall Overcome." 

News 4 caught up with Dr. E. Michael Harrington, a renowned Nashville-based musicologist, and former Belmont University professor, who served as an expert witness for the plaintiffs to gauge his opinion the ruling. 

"I'm thrilled and honored to be involved with this," said Dr. Harrington. "When we make music easier and make everyone feel more a part of it, and they don't have to worry about getting sued -- then everyone's better for it. The culture is better; the people are better."

The lawsuit, which was filed in April 2016, proposed that the song, "We Shall Overcome," disseminated from an old spiritual before it was picked up and repopularized by the 1940s labor movement, and movie and television producers should not have to pay up to $100,000 in licensing fees to Richmond Organization and Ludlow Music to use the tune (or derivative works) in their programs. 

 "The Library of Congress called this 'the most important song of the 20th century.' It's a very powerful song and should be free for all of us to use," Harrington said. 

Harrington's role in the case was to trace the melody of the song in question back to their origins, which he says goes all the way back to a "beautiful, beautiful" Italian melody from the 1780s known as "O Sanctissima."

"It's been a called a folk song, a hymn, and what's called a 'sailor's song'...there's even a movie where Bing Crosby sings it. It is really the melody of 'We Shall Overcome,'" Harrington explains. "So you have musical transmission over more than a century with different people adding different words, different chords and things like that. You can't say it begins with exactly this person, and this specific person and one or two people own the music," Harrington said. 

As it stands now, United States Copyright Law only protects "original works of authorship" fixed in a tangible medium created after 1932. 

The defendants argued, that they were entitled to the licensing fees on their own derivative works, arguing they were distinguishable from all works that had proceeded it. Pete Seeger's version of the song slightly changed two key phrases in the song: "We will over come" to "we shall overcome," and "down in my heart" to "deep in my heart."

But is that enough changes to be considered an "original" derivative work?

The plaintiffs, who delivered their opinion in this class-action style lawsuit, didn't think so. 

"It's a good idea to say that people... and corporations shouldn't be owning something they didn't create," Harrington said. "[and saying] just because you change a word, you own every other world, or just because you change one note, you own every other note."

As Harrington's research argued, both the melody and lyrics in "We Shall Overcome" existed long before Seeger's derivative work, and allowed plaintiffs to argue that both are free to use and create additional derivative works from without paying copyright fees. 

U.S. District Judge Denise Cote, who partially granted the motion, agreed with them. 

"You see copyright law is about rewarding and protecting original expression. How is changing a few words doing much of anything? It just a word," Harrington said. "In the end, that was one of the most important points and what the judge held up."

What's important going forward, Harrington says, is that songwriters not be afraid to keep creating music because of the chances of creating a derivative and end up getting sued. 

"It's good to say that people create by listening to what's around us, and we reshape it and perform it, and then someone else re-does it. So, especially if you can trace it to the public domain, everyone's happier and everything's better," he said. "You want people to feel like this should have been in the public domain all the time. Copyright should have never been a part of this, so I'm thrilled the decision came the way it did."

Dr. Harrington will also join the legal team at Wolf Haldenstein in their next copyright battle, disputing publishing rights to "This Land Is Your Land," a song made popular by Woody Gutherie. 

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