Nwosuocha v. Glover et al. was a copyright infringement case that started in the Southern District of New York and found its final disposition in the Second Circuit. The case centered around an “incurable” defect in Nwosuocha’s claim that he was warned about and subsequently ignored.
Emelike Nwosuocha (a/k/a Kid Wes) brought the claim of copyright infringement against Donald Glover (a/k/a Childish Gambino) alleging that Glover’s worldwide hit “This Is America” was substantially similar to an earlier song composed by Nwosucha titled “Made In America.” The plaintiff’s song was first uploaded to SoundCloud in 2016 and the sound recording was registered in 2017. The more famous defendant’s song and accompanying music video debuted to raucous acclaim on Saturday Night Live in 2018.
In an exchange of pre-trial letters, the plaintiff was warned by opposing counsel that his registration was only for the sound recording of the song, yet his suit specifically cited the underlying composition. The district court weighed in, too, issuing a decision and order that pointed out the fatal registration mismatch in the case. Despite the writing on the wall, the plaintiff proceeded with the case in district court.
The district court followed through with the warnings it had broadcast to the plaintiff and dismissed the case with prejudice as a matter of law.
In awarding attorneys’ fees, the lower court took umbrage with plaintiff’s refusal to heed its decision and order. Nonetheless, it agreed with plaintiff’s opposition to defendant’s request of $934,653.85, ultimately reducing the amount to $286,475.10 based on plaintiff’s inability to pay (as well as exorbitant hourly rates claimed by defendant’s counsel that the court found were not commensurate with the complexity of the case).
The Second Circuit affirmed the district’s finding of law and then considered plaintiff’s claim that even the reduced award was still financially ruinous and that it would not fulfill the stated intention of the Copyright Act, which was to act as a deterrent. Attorneys’ fees, plaintiff claimed, were intended to stop serial infringers and he was a plaintiff.
The Second Circuit disagreed with plaintiff’s assertion that the district court erred by awarding financially ruinous attorneys’ fees, citing the lower court’s reduction of the requested fees by 61%.
The court also disagreed with plaintiff’s assertion that attorney’s fees are intended to punish serial infringers. Serial infringement, the court said, was only one of the reasons fees could be awarded – and discouraging frivolous cases from being brought was another. The court said this case was indeed frivolous because of all the warnings the plaintiff ignored about the fatal registration flaw in the case — that is, registering the sound recording but suing over the composition’s copyright.
Another aggravating factor considered by both the district court and the appeals court was that plaintiff’s claims appeared to be “opportunistic,” as he only sued years after the song had become a global hit.
This is the kind of case that makes me wonder how it ever got to federal court, much less how all the way to the Second Circuit. It’s a sad tale for everyone; the plaintiff is saddled with a very large sum that he owes the defendant, and the defendant only will get a third of what they actually spent (if anything from an allegedly judgment-proof debtor). No one really succeeded in this case.
