Folk anthems “We Shall Overcome” and “This Land Is Your Land” are on their own road to a particular kind of freedom. Separate lawsuits claim the songs should not be under copyright but in the public domain, and one has been decided.
A federal judge found in early September that the first verse of “We Shall Overcome” has no known author and the melody is older than the United States itself. She ruled partially under the advice of Nashville based intellectual property consultant and Berklee College of Music professor Michael Harrington.
“The music can be traced back to the 1700s. It really is the old Italian hymn “O Sanctissima,” he says.
The lyrics have no identifiable author, he adds. But as “We Shall Overcome” became the most important song of the Civil Rights movement, folk music icon Pete Seeger claimed copyright by changing the word “will” to “shall” - though not for personal gain.
“Because he feared that there’d be some really nasty or improper use of it or something Hollywood-ish that he dreaded, so that was one of the reasons he wanted it published.”
Furthermore, the copyright was granted to a foundation that funnelled the song’s royalties to social justice causes. That stream now dries up, and the song is free to be recorded or used in film and advertising without permission or cost.
As for “This Land Is Your Land,” Harrington says Woody Guthrie wrote original lyrics to an older American melody and published the song in 1945.
“In the old days, back then, you had to renew the work 28 years after it was copyrighted,” he said. And that would be 1973. “Which then would indicate that that work has been in the public domain since 1973, because if you don’t follow the rules, you lose copyright.”
The Woody Guthrie estate will fight that contention in court. The claim was filed in June by the same law firm that successfully sued “Happy Birthday” into the public domain in 2016.