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Childish Gambino hits back in This Is America song theft legal battle

By Chris Cooke | Published on Tuesday 13 September 2022

Childish Gambino has filed legal papers calling for the song-theft lawsuit targeting his 2018 hit ‘This Is America’ to be dismissed.

He presents the usual responses to such lawsuits – ie that the elements his track and the earlier work he’s accused of ripping off share are not protected by copyright and that the plaintiff hasn’t demonstrated how he had access to the earlier song. Plus he throws in some issues around copyright registration for good measure.

Miami-based rapper Kidd Wes – real name Emelike Nwosuocha – sued Childish Gambino – or Donald Glover if you prefer – last year, claiming that ‘This Is America’ lifted from his 2016 track ‘Made In America’.

“The distinctive flow” heard in Glover’s track, the lawsuit stated, “is unmistakably substantially similar, if not practically identical, to the distinct and unique flow that was employed by Nwosuocha in recording his vocal performance of his rapping of the hook to his copyrighted work”.

“The lyrical theme, content, and structure of the identically-performed choruses are also glaringly similar”, the lawsuit added. “The unmissable substantial similarity of the two flows used in the songs’ respective hooks, as augmented by the two hooks’ substantially similar structure and lyrical content, is striking to an extent beyond coincidence and is accordingly audible to the average lay person who listens to both songs”.

But not so, says Glover in his response. “Plaintiff’s claim is based on the supposed lyrical, rhythmic, and thematic ‘similarities’ between the songs at issue”, his new legal filing notes. “However, the alleged ‘similarities’ are either starkly different (as in the lyrics) and/or consist of nothing more than non-copyrightable material”.

Expanding on that argument, Glover’s filing says that “a comparison of the lyrics identified by plaintiff shows that the only similarity is the unprotectable word ‘America'”. Meanwhile, “plaintiff’s reliance on allegedly similar cadence, rhythm, ‘triplet flow’ or vocal ‘utterances’ performed within ’20 beats per minute’ of each other is insufficient to allege infringement”.

“To the extent plaintiff’s claims are based on the vocal style or performance of the chorus, this non-compositional element is outside the scope of any compositional registration”, it then adds. “Accordingly, no one can own a ‘flow'”.

“An ‘ordinary observer’ can also hear the differences in the rhythm of the respective choruses”, it goes on. “Plaintiff’s composition begins with a pick-up note on the lyric ‘I’m’. The words ‘made in America’ (in the phrase ‘I’m made in America’) are rapped starting on beat four [and] the words ‘making America’ (in the phrase ‘Making America great again’) are rapped on beat two”.

“In contrast”, it then argues, “the entirely different lyrics ‘this is America’ have no pick-up note and are rapped on beat two. The chorus’s first and third beat contain a full rest, with no words rapped. But even if the lyrical phrases were rapped identically, the performance technique of ‘triplet rhythm’ is not protectable, not original to plaintiff, [being] common in trap music, and certainly not owned by plaintiff”.

As for how Glover or one of his team might have had access to ‘Made In America’ when making ‘This Is America’, Nwosuocha’s lawsuit simply talks about his track being available on Spotify and YouTube. But, Glover’s filing says, courts have generally concluded that the simple availability of a track on the streaming services is not enough to prove an accused song thief had access to the earlier work.

“Plaintiff does not allege that any defendant had access to his work”, it states. “Rather, plaintiff simply speculates that because his work was posted to streaming services, such as Spotify and YouTube (along with tens of millions of other works), that perhaps one of the defendants may have listened to it”.

But, “courts have routinely held that the mere availability of a composition on the internet is not sufficient to establish access to a work, and this is plaintiff’s sole allegation of access”.

On top of all that, Glover’s filing argues that, while Nwosuocha’s lawsuit said that the plaintiff had registered his work with the US Copyright Office – there being a copyright registration system in the US – that registration actually related to the recording of ‘Made In America’.

And this lawsuit accuses Glover of infringing the separate copyright in Nwosuocha’s song, which seemingly wasn’t registered.

With all that in mind, Glover’s legal filing concludes: “Defendants respectfully request that the court dismiss the complaint with prejudice and award such other relief as it deems just and proper”.