Appeals Court Affirms Dismissal of ‘This Is America’ Infringement Suit: The ‘Copyright Registration Is Simply for the Wrong Work’

Back in March of 2023, a federal court dismissed a copyright infringement lawsuit filed against Childish Gambino, Sony Music, and others over “This Is America.” Now, an appellate court has upheld the ruling.The Second Circuit Court of Appeals just recently affirmed the dismissal of the suit, which the plaintiff, a Florida-based musician named Emelike Nwosuocha and known professionally as Kidd Wes, had submitted in 2021. (That artist isn’t to be confused with the identically named Florida attorney who’s made unrelated headlines.)

Importantly, the three-judge appeals panel didn’t rule on whether “This Is America” actually infringes on Nwosuocha’s “Made in America” (2016). According to the filing party, the defendants’ commercially prominent track lifted without permission elements including “flow” as well as “structure and lyrical content.”

However, the appellate court likewise found that the plaintiff lacks the necessary copyright to levy the complaint. In short, Kidd Wes registered his recording but not the underlying composition.

(Upon dismissing the suit last year, the presiding judge rejected the infringement claims themselves, citing a perceived lack of similarity between the involved songs, and also pointed out the copyright-protection shortcoming preventing the action from proceeding.)

“Rather, Nwosuocha’s problem is that his copyright registration is simply for the wrong work—his sound recording rather than his musical composition,” the appeals court spelled out in the newly penned order. “That distinction is important. It is the difference between forgiving technical mistakes in a copyright application and allowing applications to create registrations in material never mentioned.

“Nwosuocha could not have filed an application for one song and then expanded the registration to another by claiming that he meant to register both after the fact. He likewise cannot apply for only a sound recording and expand the registration to the underlying musical work,” the court proceeded.

At the time of this writing, Kidd Wes didn’t appear to have commented publicly on the ruling; Childish Gambino today unveiled a massive tour in support of his surprise-release album. But Kidd Wes still looks to be making music and will presumably protect his recordings and compositions alike moving forward.On a related note, towards the top of 2024, French Montana won a copyright suit over “Ain’t Worried About Nothin’” despite the “apparent similarities” between the commercially successful song and the allegedly infringed work.

The plaintiff in the case, having uploaded the relevant track to a music-sharing platform as a minor, ultimately registered only the recording (not the composition) with the Copyright Office. Had the composition been protected as well, the outcome “might have been very different,” the presiding judge noted when dismissing the suit.