May 14, 2024 2 min read

Appeals court upholds Childish Gambino song-theft ruling because of copyright registration error

Childish Gambino has successfully defeated a song-theft lawsuit filed over his song ‘This Is America’ for a second time. An appeals court has also rejected a copyright infringement claim made by rapper Kidd Wes because of a copyright registration error

Appeals court upholds Childish Gambino song-theft ruling because of copyright registration error

The US Second Circuit Appeals Court has declined to overturn an earlier ruling in a song-theft dispute between Childish Gambino and Miami-based rapper Kidd Wes. The message from the appeals court is clear: if you're going to sue for copyright infringement in the US, don't screw up your copyright registrations. 

Kidd Wes, real name Emelike Nwosuocha, “registered the sound recording of his song but failed to register the musical work itself”, the appeal judges explain in their ruling. When he then accused Childish Gambino, real name Donald Glover, of ripping off his 2016 song ‘Made in America’, that claim centred on the musical work not the recording. Nwosuocha thus “failed to satisfy the registration requirement before bringing this suit”. 

It was Glover’s 2018 track ‘This Is America’ that Nwosuocha said was a rip off of his song. “The distinctive flow” heard in the newer track, his lawsuit claimed, “is unmistakably substantially similar, if not practically identical, to the distinct and unique flow” he had employed when “recording his vocal performance of his rapping of the hook to his copyrighted work”.

Last year a judge dismissed Nwosuocha’s lawsuit, partly because of registration issues, and partly because “a cursory comparison” of the two songs “reveals that the content of the choruses is entirely different and not substantially similar”. Nwosuocha then appealed. 

Copyright is an automatic right, meaning a creator enjoys control over their creative work as soon as that work is created, no registration is required. However, under US copyright law, it is advisable to register works with the Copyright Office, especially if you are planning on enforcing any copyrights in court. 

The Copyright Alliance explains, “you must file an application for registration before you can sue someone for infringing your copyright, even if the infringement has already occurred”. And if you want to seek statutory damages - so that you can claim up to $150,000 in damages oblivious of any actual financial loss - ”the copyrighted work must be registered before infringement commences”. 

Copyright law treats musical works and sound recordings separately, so that a track has two copyrights in it. Therefore, artists and songwriters, or their business partners, need to make sure both rights are registered. This is where Nwosuocha failed. 

In his appeal, Nwosuocha argued that copyright law says that infringement lawsuits can still be filed even if there are inaccuracies in a registration, providing those inaccuracies were a mistake. However, the appeals court said that failing to register the musical work wasn’t a mere inaccuracy. 

“The distinction between a sound recording and a musical work is not just an administrative classification”, the court wrote. The distinction between the two kinds of copyright is important because they are “different artistic works that can be copyrighted by different creators and are infringed in different ways”. 

Having ruled that way on the copyright registration issue, the appeals court didn't even consider whether ‘Made in America’ and ‘This Is America’ were sufficiently similar to constitute copyright infringement. However, they added, if the lower court judge decided they were not, that was also a “sufficient reason” to dismiss Nwosuocha's lawsuit. 

In recent years, US courts have generally set a high bar for artists who accuse other artists of ripping off their work - concluding that, where two songs simply share some short musical segments, those segments in isolation don't enjoy copyright protection, meaning it is unlikely there is a case for copyright infringement. 

This means that Nwosuocha's legal action was already ambitious. Though, it still would have been better to ensure the registration paperwork had been properly done before filing any lawsuit.

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