"We Shall Overcome" Putative Class Action Survives Dismissal

We Shall Overcome Foundation v. Richmond Org., No. 16-2725 (S.D.N.Y. Nov. 21, 2016).

In a putative class action challenging the Defendants' copyright in the song "We Shall Overcome" on the basis that the lyrics of the first verse is virtually indistinguishable from a song in the public domain, the Court denied the defendants' Rule 12(b)(6) motion to dismiss the copyright claims, but did dismiss the state-law claims as pre-empted.  The Court found that the plaintiffs had plausibly alleged: (1) that the first verse in the copyrighted work “We Shall Overcome” lacks originality (thereby rebutting the certificate of registration); (2) fraud on the copyright office by deliberately omitting from their application for a copyright in a derivative work all reference to the public domain spiritual or the publications of “I Shall Overcome” and “We Shall Overcome” as antecedents to the Song; and (3) divestment of copyright protection, under the 1909 Act, by publishing the work without including notice of copyright.  However, the state-law claims were dismissed as pre-empted (Those claims are for money had and received, violation of New York General Business Law § 349, breach of contract, and rescission for failure of consideration).