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Judge dismisses song theft lawsuit against Childish Gambino
By Chris Cooke | Published on Monday 27 March 2023
A US judge last week dismissed a song theft lawsuit filed against Childish Gambino which claimed that his 2018 hit ‘This Is America’ ripped off an earlier track called ‘Made In America’.
The choruses of the two songs are not “substantially similar”, despite what that lawsuit claimed, the judge ruled, while the “distinctive flow” of the earlier work is not protected by copyright.
Miami-based rapper Kidd Wes – real name Emelike Nwosuocha – sued Childish Gambino – aka Donald Glover, of course – in 2021, claiming that ‘This Is America’ lifted from his 2016 release ‘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 then added.
Glover responded to the lawsuit last September seeking to have Nwosuocha’s legal action dismissed. He raised issues with Nwosuocha’s copyright registrations; argued that the plaintiff hadn’t offered any credible explanation for how he had had access to ‘Made In America’; and added that the elements the two tracks had in common were not protected by copyright.
Judge Victor Marrero basically concurred with Glover, ruling that there were indeed issues with the registration of Nwosuocha’s copyrights, and – even if there weren’t – the rapper had failed to make a compelling case for copyright infringement.
“A cursory comparison with the challenged composition reveals that the content of the choruses is entirely different and not substantially similar”, the judge stated.
Meanwhile, the “distinct and unique vocal cadence, delivery, rhythm, timing, phrasing, meter and/or pattern” or “flow”, as well as the “lyrical theme” and “structure” of the chorus, in ‘Made In America’ “lack sufficient originality alone, or as combined, to merit compositional copyright protection or are categorically ineligible for copyright protection”.
And with all that in mind, Marrero granted Glover’s motion for dismissal. Though Nwosuocha may as yet appeal.
