MANHATTAN (CN) — Rapper Kidd Wes sought to revive his copyright infringement lawsuit against Donald Glover in the Second Circuit Monday, claiming the “Community” actor and well-known rapper ripped off elements of Wes’ music when he created the 2018 hit song “This is America.”
Wes, whose real name is Emelike Nwosuocha, released his own song, “Made in America,” in 2016 on Soundcloud’s streaming platform. He says Glover — who goes by the rapper stage name Childish Gambino — stole elements of his flow, which his attorney defined as one of the “key core and expressive, creative, artistic features of hip-hop music.”
“The key distinguishing feature of flow is, like poetry, there’s a meter, there’s syllable emphasis. But it’s also interacting with the background music to create composite patterns,” attorney Gregory William Keenan of the Digital Justice Foundation said at the Second Circuit Monday.
“So you’re lining up your syllables and the delivery and the cadence and the meter, like the lyrics from a Robert Frost poem, but you’re also making specific choices about how to make that interact with the background music, the rhythms, the beats, things of that nature.”
Jonathan Davis, who represented Glover and his co-defendants, argued that “flow” isn’t subject to copyright law.
“There are only so many notes, only so many ways that we can put and string music together. And for that reason it has to be something different, something novel, something unique,” Davis said Monday.
“This is America” co-writer Young Thug; producer Ludwig Goransson; and multiple record and publishing companies are also named as defendants in the lawsuit.
U.S. District Judge for the Southern District of New York Victor Marrero dismissed Kidd Wes's claims last year after finding the rapper failed to properly file a copyright registration for his song.
While Wes obtained a copyright registration for an unpublished collection of sound recordings, including for his song “Made in America,” he did not get a copyright registration for the underlying musical composition.
His attorney called that an administrative error and said it shouldn't affect the copyright protection of his client's music.
“An applicant for a copyright registration, especially one who’s not a lawyer, might check the wrong box on the registration documents as a result of some legal oversight,” Keenan said. “And we’re not going to expose them to invalidation based on an applicant’s good faith misunderstandings of the details of copyright.”
U.S. Circuit Judge Michael Park, a Donald Trump appointee, asked why Wes didn’t fix the mistake sooner.
“Before you come to court asking us to say that the boxes don’t matter, if you have the opportunity to go and fix it, and check the right box — that seems like an easier avenue,” Park said Monday.
Davis seized on the registration issue during his arguments: “This is not a mere error," he said. "This is the absolute failure to register a work.”
Pushing back, Park asked if the technical mistake should be held to the same standard as failing to register his work altogether.
“He submitted the audio and checked the sound recording on the form. And what he did not do is check the words and music box,” Park said. “If that’s right, how is that not a technicality, as opposed to a substantive failure?”
Davis responded that failing to properly classify the work being registered wasn't a simple clerical error, like a wrong date of birth or date of publication.
“When you are claiming that the complete failure to register the work that you seek to protect — and have standing to sue from — has been omitted, that is a material error,” Davis said.
U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee, also took part in the panel Monday. U.S. Circuit Judge Alison J. Nathan, a Joe Biden appointee, was not present but will take part in the panel’s decision.
Neither party's attorneys responded to requests for comment.
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