"It's an important part of our political and social history and we certainly see the irony in the fact that this song, which has represented the civil rights movement, needs to be emancipated itself," says Mark Rifkin, an attorney and partner with Wolf Haldenstein Adler Freeman & Herz, who is representing the We Shall Overcome Foundation in the suit.
Rifkin is representing the nonprofit with his colleague Randall Newman, who last year led the successful effort to extinguish the copyright to the widely recognized song "Happy Birthday to You."
The foundation on Tuesday laid forth a series of arguments in its suit against the Richmond Organization and Ludlow Music over the copyright. The song, they argue, predates the copyrights obtained in 1960 and 1963. And the copyright that was obtained only covers specific arrangements and verses of the song, not its main melody, they argue.
"The basic story is the song was written well before anybody copyrighted anything," Rifkin said.
The lawsuit stems from the Richmond Organization and Ludlow Music's refusal to grant the foundation a license to use a rendition of the song in a documentary. The foundation could face a penalty of up to $150,000 if it used the song and the copyright claim were upheld, it said in the suit.
The song was initially copyrighted by folk singers Pete Seeger, Guy Carawan and Frank Hamilton in 1960 "to protect it from being turned into an insipid pop song," according to the liner notes of "If I Had A Hammer: Songs of Hope & Struggle: Pete Seeger," which was produced in 1998 by Smithsonian Folkways.
But its roots stretch back even further.
In his 1993 book "Where Have All the Flowers Gone," Seeger wrote that the modern roots of "We Shall Overcome" go back to 1946, when folk singer and activist Zilphia Horton heard it sung at a tobacco worker labor strike in Charleston, S.C., according to a 2014 Library of Congress blog post. She later taught it to Seeger, who published it in a newsletter in 1948.
Nearly a decade later, Seeger arranged an accompaniment, and Carawan and Hamilton changed the song's rhythm, facilitating its popularization in the civil rights era, according to the post. President Lyndon B. Johnson later famously invoked the phrase in his March 15, 1965, speech urging Congress to pass legislation guaranteeing voting rights for all Americans.
The Library of Congress traces the song back even further than the 1946 strike. The lyrics derive from the 1903 song "I'll Overcome Some Day," written by the Rev. Charles Tindley, and the melody from "I'll be All Right," a traditional African American gospel song, the library wrote.
Isaias Gamboa, the founder of the We Shall Overcome Foundation, argues on the foundation's website that the song was actually created sometime between 1932 and 1942 by Louise Shropshire, the granddaughter of slaves. He also says she copyrighted the song in 1954, though neither her name nor that date appears in the Tuesday lawsuit.
The song's origins aside, the foundation also argues in the suit that Ludlow forfeited the copyright when it allegedly published the lyrics and sheet music to the song without a copyright notice. A similar argument was made in the case last year in which the copyright to "Happy Birthday" was nullified.
TRO Essex Music Group, the descendant of the Richmond Organization, did not return a request for comment by email, and a woman answering its main phone line said simply that it had no comment.