This is American Litigation: Childish Gambino sued over copyright infringement

June 3, 2021

3 min read

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What's going on here?

Childish Gambino, aka Donald Glover, is being sued over copyright infringement pertaining to his award-winning song “This Is America”. According to Emelike Nwosuocha, a musician who performs under the name Kidd Wes, Glover’s U.S chart topping single copied Nwosuocha’s earlier song, “Made In America”.

What does this mean?

Arguably one of the most controversial and most compelling songs of 2019, Glover’s This Is America rose to the top of charts, and ultimately made history by becoming the first rap single to win Song of the Year at the Grammys. The single communicated a biting message about racial equality, gun violence and police brutality in the U.S., seemingly well-timed to the ushering in of a new wave of Black Rights activism across the West.

Nwosuocha has argued, however, that Glover’s song shows a “substantial similarity” to his own, claiming that both songs shared a “distinct and unique vocal cadence, delivery, rhythm, timing [and] phrasing”. In particular, it was noted that the choruses were strikingly similar, allegedly beyond coincidence, which even a man on the Clapham omnibus would notice.

 Nwosuocha is seeking damages for lost profits and opportunities. Given that Glover and his team earned millions of dollars as a result of This Is America’s success, this would likely involve a very substantial payout. 

What's the big picture effect?

Copyright infringement claims in the music industry have seen a marked increase. According to George Washington University’s law school, between 1844 and 2014 only eight cases were brought, whereas the past six years have seen an average of sixteen per year. This is attributed to recent case precedent set by a copyright claim relating to Blurred Lines, a track written by Robin Thicke and Pharrell Williams, which was held to have copied Marvin Gaye’s “Got To Give It Up”. It was held that Blurred Lines benefitted from the “constellation of similarities” to Gaye’s work. Critics of this judgment have stated that it would take musicians’ focus out of the studio while they keep a side eye on the courtroom.

 Technology also explains this rise. Music has never been so accessible. It is therefore harder for artists to claim that they had not heard the song they are accused of copying. Furthermore, similarities are more likely to be spotted with heightened fan bases being more able to listen to broader catalogues of music, finding similarities dishonestly appropriated or else. Importantly, with regards to the marketability of a song, while there are endless combinations of musical melodies, only a few are pleasing to the consumer, and even fewer are likely to enjoy any success. This heightens chances of similarities.

Diligent artists are now protecting themselves by utilising forensic musicologists, who effectively make sure the song is clear of any copyright infringement prior to release. Focus nowadays is more on the beat of a song and subject matter, rather than any melody. This explains why Nwosuocha’s claim is broad in its scope, addressing vocal cadence, delivery, rhythm, timing and phrasing.

In any event, Glover’s team have claimed that This Is America preceded Made In America, and that they have the capacity to prove that using computer software data. This temporal question of fact may be Nwosuocha’s case’s downfall. All in all, a win for Glover would probably be a positive result. Artists should be free to draw inspiration without drawing money from their wallets. 

Report written by Matt Bryan

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