Disclaimer: This blog post is not about a presidential battle.

Introduction

Instead, it’s a battle over two songs—Childish Gambino’s “This is America” and Kidd Wes’s “Made in America.”  You might be familiar with Childish Gambino’s vastly successful “This is America.”  Amongst other things, the song won Song of the Year at the 61st GRAMMY Awards in 2019.  Kidd Wes, is a lesser-known, but still very talented, artist.  His “Made in America” song is also pretty good. 

Kidd Wes filed a complaint in the United States District Court for the Southern District of New York alleging that Childish Gambino and others involved with the creation of “This is America” engaged in direct, contributory, and vicarious copyright infringement of his copyright in “Made in America.”  Recently, Gambino and the other defendants successfully dismissed Wes’s complaint. 

In early September 2016, Kidd Wes wrote “Made in America.”  On September 11, 2016, he uploaded the song to Soundcloud.  He then uploaded the song to YouTube on November 9, 2016. On May 24, 2017, Wes registered an album, which included “Made in America” with the United States Copyright Office.  He was then issued a Sound Recording registration.

In 2018, Gambino and others wrote “This is America.”  The song was released publicly on May 6, 2018. 

Establishing a Claim for Copyright Infringement

To bring a claim for copyright infringement, a potential claimant must apply for registration and receive the Copyright Office’s decision on the application before commencing a suit.  Accordingly, no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with the Copyright Act. 

A copyright only protects something that is original and does not protect ideas.  As pertaining to music, common rhythms, song structures, and harmonic progressions are not protected.  Similarly, themes are not copyrightable.  However, a work may be copyrightable even though it's a compilation of unprotectable elements if the original way in which the author has selected, coordinated, and arranged the elements of their work is protectable. 

A court may dismiss a copyright infringement claim for failure to state a claim when either the similarity of the works concerns only non-copyrightable elements of a plaintiff’s work, or when no reasonable trier of fact could find the works substantially similar. 

The Court’s Reason for Dismissal

Wes alleged that the flow used in "This is America’s" chorus is “unmistakably similar, if not practically identical” to “Made in America.”  He also alleged that “the lyrical theme, content, and structure” of the choruses are “glaringly similar.”  

In response, Gambino argued that Wes’s copyright claim failed as a matter of law because Wes failed to register a copyright for his composition of “Made in America,” noting that Wes’s Certificate of Registration is for a sound recording of the song, not for its musical composition.  The United States District Court for the Southern District of New York agreed. 

Copyright protection extends to two distinct aspects of music: (1) the musical composition—usually composed of two distinct aspects—music and lyrics; and (2) the physical embodiment of a particular performance of the musical composition, usually in the form of a master recording.  Wes’s complaint did not allege that Gambino incorporated the physical embodiment or sound recording of “Made in America.”  Instead, Wes alleged that Gambino infringed on the composition of “Made in America” including the “lyrical theme, content, and structure.”

Second, the Court found that even if Wes had a copyright registration for the composition of “Made in America,” the elements of the song that were allegedly infringed upon are neither original enough to warrant copyright protection nor substantially similar to “This is America.”  The Court stated that Wes’s theme in “Made in America” is simply an idea, and thus not protectable.  Further, the Court found that the lyrics of the songs' choruses are not substantially similar.  The Court noted that “Made in America” pertains to Wes’s success, while “This is America” “addresses contemporary America, what America means, and how it is perceived.”

Takeaway

Parties seeking to register a copyright in their music should make sure that they obtain both a sound recording registration and a musical composition registration.