Here’s What Happened:

In fall 2016, rapper Emelike Nwosuocha, a/k/a Kidd Wes, wrote and published a song called “Made in America.” In May 2017, Kidd Wes applied to register the album that included “Made in America” with the US Copyright Office. The Copyright Office issued a sound recording registration.

In 2018, the rapper Donald Glover, a/k/a Childish Gambino, released the song “This is America.” The song won in all four of its nominated categories at the 61st Grammy Awards in 2019: Song of the Year, Record of the Year, Best Rap/Sung Performance and Best Music Video.

Kidd Wes filed a copyright infringement suit against Childish Gambino alleging that “This is America” infringed on “Made in America.”

The trial court granted Childish Gambino’s motion to dismiss because Kidd Wes’ copyright registration was in the sound recording only and not the musical work itself. Since registration is a prerequisite to bringing an infringement action. Kidd Wes was out of luck. The district court also found that “This is America” did not infringe on “Made in America.”

Kidd Wes appealed to the Second Circuit Court of Appeals. He made two arguments. The first argument was that his application was inaccurate about covering the musical work instead of the sound recording. A party can bring suit based on an inaccurate registration certificate unless: (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration. The Court rejected Kidd Wes’ argument because the rule didn’t apply to registering the wrong work. Kidd Wes’ second argument was that the distinction between a musical work and a sound recording is an administrative one. So registration of one should be treated as registration of the other. The Court rejected this argument as well. The distinction between musical works and sound records is a matter of statute and not the Copyright Office’s administration of copyright registrations.

The Court affirmed the dismissal of Kidd Wes’ complaint.

WHY YOU SHOULD KNOW THIS:  The application to register a copyright can look deceptively simple. But, as this case demonstrates, Copyright Law dictates what information must be included to obtain a registration.

Case Information:  Nwosuocha v. Glover, No. 23-703, 2024 WL 2105473, at *1 (2d Cir. May 10, 2024)

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