"We Shall Overcome" Verse Not Subject To Copyright Protection

We Shall Overcome Foundation v. The Richmond Org., No. 16-cv-2725 (S.D.N.Y. Sep. 2017) (Cote, J.).

In a putative class action challenging the validity of the defendants' copyright in the folk-song "We Shall Overcome," the Court granted plaintiffs partial summary judgment finding that the lyrics and melody of the first verse (repeated as the 5th verse) of the song are not sufficiently original to qualify for copyright registration as a derivative work.  After going through the history of various publications and registrations of the song, the Court held that the defendants could not rely upon their copyright registration's presumption of validity because the defendants had submitted sufficient evidence to rebut the presumption: "They have shown that the Defendants’ 1960 and 1963 applications for a copyright in the Song were significantly flawed."

The next questions was whether the changes to the most well-known verse of the Song, Verse 1/5, embody the originality required for protection by the Copyright Act.  A version of the song was in the public domain, so the issue was whether the changes claimed by the defendants were sufficient to qualify as a a protectable derivative work.  The Court held that "the Plaintiffs have shown that the melody and lyrics of Verse 1/5 of the Song are not sufficiently original to qualify as a derivative work entitled to a copyright.  As a matter of law, the alterations from the PSI Version are too trivial. A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. ... More specifically, the changes of “will” to “shall” and “down” to “deep” and the melodic differences in the opening measures and the seventh measure, do not create a distinguishable variation. These differences represent “variations of the piece that are standard fare in the music trade by any competent musician.”  In other words, changing "will" to "shall" was not sufficiently original to warrant copyright protection.

The Court did, however, deny the motion for summary judgment on the issues of the authorship and divestment (by publication), and fraud on the copyright office; and partially granted a Daubert motion precluding expert testimony.

Remastering Defeats Claims of Pre-72 Sound Recording Infringement

ABS Entertainment, Inc. v. CBS Corp., No. 15-cv-6257 (C.D. Cal. May 30, 2016) [Doc. 104].

In a putative class-action alleging that CBS was publicly performing pre-1972 sound recordings in violation of California state law, the Court granted defendants summary judgment because defendants had only publicly performed post-1972 remastered versions of Plaintiffs' works which are governed by federal copyright law.  The Court concluded that a sound engineer's remastering of pre-1972 sound recordings -- through subjectively and artistically altering the work's timbre, spatial imagery, sound balance, and loudness range, but otherwise leaving the work unedited -- is entitled to federal copyright protection.  Focusing on whether the works were derivative, the Court considered the parties' evidence of originality (or lack thereof).  Further, the Court focused on the fact that the remastered sound recordings which CBS actually performed were created pursuant to authorization from either Plaintiffs or their predecessors.

Wyclef Escapes Infringement Claim Because "Actual Sounds" Not Copied

Pryor v. Jean, No. CV 13-02867, 2014 BL 283332 (C.D. Cal. Oct. 08, 2014) [Doc. 36].

Plaintiff, who claimed that his 1970's song "Bumpin' Bus Stop" was infringed by the defendants use of a sample in the Wyclef Jean song "Step Up" recorded in 2006, had his copyright infringement case dismissed.  The issue was that Plaintiff's song had appeared on two albums.  The song first appeared on a recording referred to as the "Gold Future" record.  Later, the Gold Future record was remastered, shortened in duration, and Plaintiff's band name was changed.  The latter record was referred to as the "Private Stock" record.  Years later, Defendants licensed the song from the Private Stock record.

The existence of two separate sound recordings (the Gold Future record and the Private Stock remaster) was important, as the substantive allegations at issue referred only to copyright to the Gold Future record, and not to the "Bumpin' Bus Stop" musical composition featured in both the Gold Future record and the Private Stock record.  The Court found: "Under 17 U.S.C. § 114(b), Plaintiffs have the exclusive right to duplicate, rearrange, or remix the 'actual sounds' of the Gold Future record. Defendants did not do anything with those 'actual sounds.'  Rather, Defendants used licensed 'actual sounds' from the Private Stock record.  Because the TAC's First and Second claims for relief are premised solely upon infringement of the Gold Future sound recording copyright, those claims are DISMISSED, with prejudice."