On May 6 Kidd Wes (Emelike Weslet Nwosuocha) issued a lawsuit against Childish Gambino (Donald Glover) alleging that his song ‘This Is America’ infringed a song he had written and published earlier, entitled ‘Made In America’. The lawsuit was filed against Glover, as well as his co-writer Young Thug, producer Ludwig Gotansson, record labels RCA Records, Sony Music Entertainment, Young Stoner Life Publishing LLC, 300 Entertainment, Atlantic Records, Warner Music Group, Roc Nation, Universal Music Publishing Group and Warner Chappell Music.
MADE IN AMERICA vs THIS IS AMERICA
Nwosuocha’s song was uploaded to SoundCloud on the 11 September 2016, with its music video being released on the 9 November 2016. His track was then the lead single for his 2017 album Eleven: The Junior Senior Year. Nwosuocha registered the copyright with the US Copyright Office on the 24 May 2017.
Glover’s song, on the other hand, was released on 6 May 2018. It had huge commercial success and Glover went onto win in all 4 of its nominated categories at the 2019 Grammy awards, for both the song and the music video.
The lawsuit has been filed on the grounds of copyright infringement, on the basis that Nwosuocha has suffered actual damages including lost profit, opportunity and goodwill. In his claim, Nwosuocha relies on analysis by musicologist Brent Swanson, who claims that the tracks are distinctly similar in terms of their melodic contour, rhythmic triplet patterns, and in the wording ‘This Is America’ and ‘Made In America’. The documents make reference to:
“the substantial similarities between both songs include, but are not limited to, nearly-identical unique rhythmic, lyrical, and thematic compositional and performance content contained in the chorus—or ‘hook’—sections that are the centerpieces of both songs.”
Furthermore, the claimants rely on the ‘distinctive flow’ as being the musical centrepiece of the track.
The claim goes even further to also include allegations of copying the music video. Glover’s video was accoladed for its criticism of the American justice system, highlighting the oppression of African-Americans by the police and political establishment, conservative organisations, white nationalism and the racist structure in the US. Nwosuocha claims that all of these themes were copied across from his own music video.
Nwosuocha is seeking damages for the infringement across 43 categories, including record sales, downloads, streaming revenue, merchandising and many more.
This lawsuit follows a string of suits against singers who have been accused of copying their hit songs. When evaluating whether or not songs have been copied, it is important to look at what the law actually protects in a song. Intellectual property law is not constructed to protect ideas, but instead protects the expression of those ideas. In a song, this could be through the lyrics as a literary work, the music as a musical work, the sound recording or the music video as a film. Each different element can attract copyright in its own right, in addition to there being copyright in the finalised work.
It is for this reason that in order to accurately judge these claims, each case has to be determined on and individual basis and although principals of law can be applied time and time again, in each case whether there has been copying can vary depending on the facts of the case.
This is seen through the outcome of the various recent cases, which was sparked by an allegation against Robin Thicke and Pharrell Williams relating to copying from the estate of Marvin Gaye. The estate alleged similarities to Gaye’s song Got To Give It Up, and Thicke and Williams were ordered to pay nearly $5 million. In this case it was found that more intricate details of songs could be protected by copyright, such as the song’s rhythm, tempo, and even its ‘feel’.
Another high-profile case that followed the above case found Katy Perry liable for copying the beat of her song Dark Horse from a Christian Rapper, Flame. This has led to concern from musicians that individuals might be able to protect generic musical ‘building blocks’ such as a beat, as it was in this case.
It is often the case that musicians can accidentally write a song that has been written before. Lily Allen for example, when writing her song Who’d Have Known, realised that it was later similar to the song as Take That’s Shine, which was at the top of the charts at the time. She struck a deal with the band, crediting them as writers on the song, but this is a clear indication of how artists may subconsciously copy others without realising.
It is also worth pointing out the pattern of smaller artists going after bigger artists who have had huge successes with their songs. However it is often the songwriters who get drawn into these lawsuits, often made to be equally liable as the famous artist, who might not have as much money as they do to protect themselves, or to pay out if found to be liable for damages.
A SECOND ALLEGATION
This allegation is not the first that Glover has received in relation to This Is America. Jase Harley, a freelance artist has pointed out similarities between his song American Pharaoh and This Is America, in particular due to the use of voice regulation and, as Nwosuocha claims, lyrical flow. However, Harley chose not to take legal action instead viewing this as a form of flattery.
We will wait to see whether Glover is found to have copied Nwosuocha’s song, and if so, what this means for musicians and artists trying to create music in increasingly muddy waters.