Nwosuocha v. Glover, et al.

No.1:21-cv-04047 (S.D.N.Y. 2021)

Comment by Charles Cronin

The contested works have much in common: a similar title that serves as a mantra in each, and and words (“lyrics”) with similar themes of violence and wealth, so prevalent in rap/hip-hop genres. However, there is no similarity of protectable musical expression between the songs; arguably, both songs contain minimal, if any, protectable melodic, harmonic, or rhythmic (i.e., musical) expression.

The Complaint (below) suggests that the Plaintiff’s attorneys may understand that to be the case, grasping at straws in their infringement allegations based on the “distinctive flow” used by the Defendant in performing his song. Similarly misguided, and mostly irrelevant on the issue of musical similarity, is the Complaint’s discussion of the Plaintiff’s expert’s “in-depth forensic sonic analysis and comparison of the audio making up the two songs.” The Plaintiff is not claiming the Defendant sampled, or copied, the sound recording of his performance; he is claiming Glover copied his musical expression. The fact that recorded performances may sound similar, particularly to lay audiences, should not be probative, and certainly not dispositive, on the question of substantial similarity of protected musical expression, which should be evaluated on a comparison of the fundamental musical parameters of both works reduced to standard symbolic musical notation. The so-called misappropriated “flow”, according to the Complaint, is comprised of “various elements making up a vocal performance including “… a distinct and unique vocal cadence [whatever that means], delivery [whatever that means], rhythm, timing, phrasing, meter and/or pattern” – in other words generic performance elements that are protectable only as recorded sound by a particular performer.

Of course, the primary motivation for the Plaintiff’s claim is financial: the Complaint alleges Defendant’s song garnered a Grammy Award, and subsequently earned over $15 million. So-called popular music critics have claimed the song was popular because of its social justice message relating to racism, gun violence, and policing in America. Rubbish. The words of both songs, and their accompanying “choreography” (videos), appear to capitalize upon, if not celebrate, racism, violence, and misogyny, to titillate listeners (and viewers), particularly suburban white boys and young men seeking to appear “transgressive” behind a fig leaf of concern for social justice.

Donald Glover’s video recording of his shirtless, gesticulations, “critically interpreted” as an evocation of Jim Crow-era imagery, seems nothing more than a shameful reinforcement of stereotypes that comports with his moniker “Childish Gambino”. Given the importance of the visual imagery to the popularity of such works, it appears that perhaps the disparity in the appeal of the physiognomies of Glover and Nwosuocha has significantly affected the disparity in their commercial success.

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On May 10, 2024 the 2nd Circuit Appeals Court affirmed the District Court’s dismissal of this case. The Appeals Court affirmation was based not on a finding of dissimilarity between the contested works (which the District Court had determined) but rather the simple fact that the Plaintiff had not obtained a registration — prerequisite for infringement litigation — for his musical work he claims to have been infringed. It’s remarkable that rather than obtaining a registration for a musical work (and not merely his sound recording of it) Plaintiff instead argued that the distinction, established by the Register of Copyrights, between sound recordings and musical works, was merely an “administrative classification” with no bearing on the issue of the copyrightability of the subject matter at issue.

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Complaint (May 6, 2021): PDF

Memorandum Supporting Defendants’ Motion to Dismiss (Sept. 9, 2022): PDF

2nd Circuit Appeals Court Summary Order Affirming District Court Dismissal (May 10, 2024): PDF