Nwosuocha v. Glover, et al.

District court dismisses copyright infringement suit against Donald Glover and others associated with composition of Childish Gambino hit song “This Is America,” finding that plaintiff failed to properly register musical composition copyright of his song “Made in America” when registering sound recording copyright of work.

Plaintiff Emelike Nwosuocha, a songwriter and artist performing under the name “Kidd Wes,” filed a copyright infringement suit against Donald Glover, who publicly performs as rapper Childish Gambino, alleging that Glover and other defendants, including songwriters and music publishing companies, directly, contributorily and vicariously infringed on the copyright of his song “Made in America” in connection with the composition of the hit Childish Gambino song “This Is America.” According to plaintiff, the “distinctive flow” of Glover’s performance of the chorus in “This Is America” is similar, “if not practically identical,” to the flow used by plaintiff in rapping the hook of his song “Made in America,” and the two songs also share lyrical themes, content and chorus structures. Defendants jointly filed a motion to dismiss under Rule 12(b)(6).

Defendants argued that plaintiff failed to adequately state a copyright infringement claim because plaintiff had not registered a copyright for the composition of his song “Made in America,” a prerequisite to filing suit; rather, plaintiff had only obtained a copyright registration for his sound recording. While plaintiff’s suit claimed an infringement of his composition, defendants noted that plaintiff’s purported copyright registration for “Made in America” applied only to the sound recording of the song and not to the underlying musical composition. Plaintiff responded that because he had submitted a recording of “Made in America” to the Copyright Office along with a form to register the sound recording of his work, and because the Copyright Office permits the submission of a single recording to register copyrights in both the sound recording and composition of a work, he had properly registered the copyright in his composition. The court disagreed with plaintiff’s interpretation, finding that, while the Copyright Office does permit copyrights to be registered in such a way, the registration form must indicate the terms of authorship for the author(s) of the composition, including by identifying the author(s) of the “words,” “music,” “arrangement of music” or “text.” Because plaintiff had not specified on his copyright registration form that he was seeking a copyright in anything other than the sound recording, plaintiff had not registered the composition in “Made in America.” The court rejected plaintiff’s argument that he was protected by the Supreme Court’s holding in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. that a copyright registration is valid even if it contains inaccurate information, finding that the dispute was about the validity, but rather the scope, of the registration, which Unicolors does not address. The court granted defendants’ motion to dismiss plaintiff’s copyright claim with prejudice, holding that plaintiff could not cure the defect through a post-registration amendment and relation-back and then an amendment of the complaint.

In continuing its analysis, the court further held that, even if plaintiff’s suit were not defective due to his failure to register a copyright in his “Made in America” composition, defendants’ motion to dismiss would be granted because the elements of plaintiff’s song that were allegedly infringed upon lacked sufficient originality to be protectable or because they were not substantially similar to defendants’ “This Is America.” For instance, the court determined that the “lyrical theme” that was allegedly infringed amounted to no more than an idea, which is not protectable under copyright law. The court also found that the “distinct and unique vocal cadence, delivery, rhythm, timing, phrasing, meter and/or pattern” or “flow” of plaintiff’s composition lacked sufficient originality to be protectable. For those elements warranting protection, such as the lyrical content of the works, the court held that no reasonable jury could find the lyrics of the two works to be substantially similar. Restating its earlier conclusion, the court granted defendants’ motion to dismiss with prejudice.

Summary prepared by Melanie Howard and Kyle Petersen