Case 1:21-cv-04047-VM Document 100 Filed 03/24/23 Page 1 of 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK 3/24/2023

EMELIKE NWOSUOCHA,
21 Civ. 04047(VM)
Plaintiff,
DECISION AND ORDER
- against -

DONALD MCKINLEY GLOVER, II,

JEFFEREY LAMAR WILLIAMS, LUDWIG
EMIL TOMAS GÖRANSSON, KOBALT
MUSIC PUBLISHING AMERICA, INC. d/b/a/
SONGS OF KOBALT MUSIC PUBLISHING,
RCA RECORDS, SONY MUSIC
ENTERTAINMENT, YOUNG STONER LIFE
PUBLISHING LLC, THEORY
ENTERTAINMENT LLC d/b/a 300
ENTERTAINMENT, ATLANTIC RECORDING
CORPORATION, ROC NATION PUBLISHING
LLC d/b/a SONGS OF ROC NATION, SONGS
OF UNIVERSAL, INC., WARNER MUSIC
GROUP CORP., and WARNER-TAMERLANE
PUBLISHING CORP.,

Defendants.

VICTOR MARRERO, United States District Judge.

Plaintiff Emelike Nwosuocha (“Nwosuocha”) brings this

action against defendants Donald McKinley Glover, II

(“Glover”), Jeffrey Lamar Williams (“Williams”), Ludwig Emil

Tomas Göransson (“Göransson”), Kobalt Music Publishing

America, Inc. d/b/a/ Songs of Kobalt Music Publishing

(“Kobalt Music”), RCA Records, Sony Music Entertainment

(“Sony Music”), Young Stoner Life Publishing, LLC (“YSL”),

300 Entertainment LLC f/k/a Theory Entertainment LLC d/b/a

300 Entertainment (“300 Entertainment”), Atlantic Recording

 Case 1:21-cv-04047-VM Document 100 Filed 03/24/23 Page 2 of 23

Corporation (“Atlantic”), Roc Nation Publishing d/b/a Songs

of Roc Nation (“Roc Nation”), Songs of Universal, Inc.

(“Universal”), Warner Music Group Corp., and Warner-Tamerlane

Publishing Corp. (“Warner-Tamerlane”) (collectively,

“Defendants”). 1 The complaint alleges that Defendants engaged

in direct, contributory, and vicarious copyright infringement

of Nwosuocha’s copyright in his song titled, “Made in

America,” via the song titled “This is America,” in violation

of the Copyright Act, 17 U.S.C. §§ 101, et seq. (See

“Complaint,” Dkt. No. 1.)

Now pending before the Court is Defendants’ Joint Motion

to Dismiss Nwosuocha’s Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). (See “Motion,”

Dkt. No. 93.) For the reasons set forth below, the Motion is

GRANTED, and Nwosuocha’s Complaint is dismissed with

prejudice to leave to amend.

1 Defendants RCA Records and Warner Music Group Corp. were voluntarily
dismissed without prejudice from this action on April 28, 2022. (See Dkt.
No. 78.) They are therefore excluded from the definition of “Defendants.”
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I. BACKGROUND

A. FACTS 2

1. Nwosuocha Writes “Made in America” and Obtains a

Sound Recording Copyright Registration

In or about early September 2016, Nwosuocha, who

performs under the pseudonym “Kidd Wes,” wrote the song titled

“Made in America” (“Plaintiff’s Composition”). On September

11, 2016, Nwosuocha uploaded Plaintiff’s Composition to

Soundcloud, an online music streaming platform, where it was

available to the public for listening. Nwosuocha uploaded a

music video of Plaintiff’s Composition to YouTube on November

9, 2016, where it was also available to the public to be

viewed and listened to. Nwosuocha registered his then

unpublished album, “Eleven: The Junior Senior Year,” which

included Plaintiff’s Composition, with the United States

Copyright Office (the “Copyright Office”) on May 24, 2017.

Nwosuocha was then issued a Sound Recording registration,

United States Copyright Registration No. SRu 1-301-922. (See

Dkt. No. 1-2.) Nwosuocha subsequently published Plaintiff’s

Composition as a purchasable lead single to “Eleven: The

Junior Senior Year” on June 8, 2017.

2 Except as otherwise noted, the following background derives from the

Complaint. The Court takes all facts alleged therein as true and construes
the justifiable inferences arising therefrom in the light most favorable
to the plaintiff, as required under the standard set forth in Section II
below.
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2. Glover, Williams, and Göransson Write and Release

“This is America”

In 2018, Glover, Williams, and Göransson wrote the song

titled “This is America” (“the Challenged Composition”). The

Challenged Composition was publicly released on May 6, 2018,

when Glover performed the song while hosting the television

show Saturday Night Live. At or around the same time, a music

video of the Challenged Composition was uploaded and made

publicly available on Glover’s official YouTube channel, and

the song was otherwise made available for streaming and

purchase. Kobalt Music, RCA Records, Sony Music, YSL, 300

Entertainment, Atlantic, Roc Nation, Universal, Warner Music

Group Corp., and Warner-Tamerlane, as publishers and

distributers of the Challenged Composition, facilitated and

assisted with its distribution, promotion, and sale.

The Challenged Composition was an immediate and

continuing success. The song received critical acclaim,

including winning the 2019 Grammy Award for Record of the

Year. Commercially, the Challenged Composition debuted at

number one on the Billboard Hot 100 chart after selling 78,000

copies and garnering 65.3 million streams in the United States

within the first week of its release. The Challenged

Composition would go on to have 3,000,000 certified sales in

the United States alone. Glover also went on the international

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“This is America Tour,” and performed the Challenged

Composition between thirty and thirty-five times at concerts

throughout the world.

3. Nwosuocha Notifies Defendants of “This is

America’s” Infringement on “Made in America”

Nwosuocha’s counsel sent a letter to Glover, Williams,

Göransson, Sony Music, and RCA Records, on December 7, 2020,

objecting to the Challenged Composition’s infringement on

Plaintiff’s Composition. Nwosuocha’s counsel received only a

non-substantive response from Glover’s counsel, who asked for

materials supporting Nwosuocha’s claims. Nwosuocha’s counsel

sent Glover’s counsel a cease-and desist letter on February

16, 2021, after Glover demonstrated no intent to cure or

mitigate the Challenged Composition’s alleged infringement.

B. PROCEDURAL HISTORY

Nwosuocha initiated this action on May 6, 2021. (See

Complaint.) Defendants then wrote a pre-motion letter to

Plaintiff in anticipation of filing a motion to dismiss. (See

Dkt. No. 72-1.) The parties exchanged three further letters,

after which Defendants informed the Court that the parties

had concluded their pre-motion exchange pursuant to the

Section II.B.2 of the Court’s Individual Practices and had

failed to avoid motion practice at this point. (See Dkt. Nos.

72, 72-1.)

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The parties subsequently opted to file supplemental

briefing, including a joint filing by Defendants. (See Dkt.

Nos. 81-83, 86-88.) Accordingly, Defendants filed a joint

Motion to Dismiss the Complaint (the “Motion”), with an

accompanying Memorandum of Law in Support (the “Memorandum”).

(See Dkt. Nos. 93-95.) Nwosuocha filed his Memorandum of Law

in Opposition to the Motion (the “Opposition”), which was

followed by Defendants’ joint Reply Memorandum of Law in

Support of the Motion (the “Reply”). (See Dkt. Nos. 96-97.)

Nwosuocha subsequently requested leave to file a sur-reply,

which the Court denied. (See Dkt. Nos. 98-99.)

II. LEGAL STANDARD

A. MOTION TO DISMISS

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). This standard is met “when the

plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. In other words, a complaint

should not be dismissed when the factual allegations

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sufficiently “raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555.

In resolving a Rule 12(b)(6) motion, the Court’s task is

“to assess the legal feasibility of the complaint, not to

assay the weight of the evidence which might be offered in

support thereof.” In re Initial Pub. Offering Sec. Litig.,

383 F. Supp. 2d 566, 574 (S.D.N.Y. 2005) (internal quotation

marks omitted), aff’d sub nom. Tenney v. Credit Suisse First

Boston Corp., No. 05 Civ. 3430, 2006 WL 1423785 (2d Cir. May

19, 2006); accord In re MF Glob. Holdings Ltd. Sec. Litig.,

982 F. Supp. 2d 277, 302 (S.D.N.Y. 2013).

In this context, the Court must construe the complaint

liberally, “accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in

the plaintiff’s favor.” See Chambers v. Time Warner, Inc.,

282 F.3d 147, 152 (2d Cir. 2002). A district court must

confine its consideration “to facts stated on the face of the

complaint, in documents appended to the complaint or

incorporated in the complaint by reference, and to matters of

which judicial notice may be taken.” Leonard F. v. Israel

Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999)

(internal quotation marks omitted). The requirement that a

court accept the factual allegations in the complaint as true

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does not extend to legal conclusions. See Iqbal, 556 U.S. at

678.

B. COPYRIGHT INFRINGEMENT

Under the Copyright Act, “no civil action for

infringement of the copyright in any United States work shall

be instituted until preregistration or registration of the

copyright claim has been made in accordance with [Title 17,

Copyrights.]” 17 U.S.C. § 411(a). Specifically, a potential

claimant must “apply for registration and receive the

Copyright Office’s decision on [the] application before

instituting suit.” Fourth Estate Pub. Benefit Corp. v. Wall-

Street.com, LLC, 139 S. Ct. 881, 891 (2019).

“The mere fact that a work is copyrighted does not mean

that every element of the work may be protected,” rather, the

“law regulates only the copying of the plaintiff’s original

expression.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499

U.S. 340, 348 (1991); see McDonald v. West, 138 F. Supp. 3d

448, 454 (S.D.N.Y. 2015) aff’d 669 F. App’x 59 (2d Cir. 2016)

(emphasis in original). To be original means that “the work

was independently created by the author (as opposed to copied

from other works), and that it possess at least some minimal

degree of creativity. . . no matter how crude, humble or

obvious it might be.” Feist, 499 U.S. at 345 (internal

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quotation marks omitted). Copyright protection is limited in

this way because the law recognizes that “all creative works

draw on the common wellspring that is the public domain.”

Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy,

Inc., 338 F.3d 127, 132 (2d Cir. 2003).

Thus, “copyright protects only that which is original,”

and “does not protect ideas, only their expression.”

McDonald, 138 F. Supp. 3d at 455. “This principle excludes

from copyright the raw materials of art, like colors, letters,

descriptive facts, and standard geometric forms, as well as

previous creative works that have fallen into the public

domain,” and “[i]t likewise excludes the basic building

blocks of music, including tempo and individual notes.” Id.

at 454 (collecting cases). Further, “words and short phrases,

including titles and slogans, rarely if ever exhibit

sufficient originality to warrant copyright protection,” and

“[l]onger phrases are also not protectable if they are common

or cliché.” Id. Similarly, “common rhythms, song structures,

and harmonic progressions are not protected” and “[t]hemes

fall into the category of uncopyrightable ideas.” Id. at 454-

55. Still, “a work may be copyrightable even though it is

entirely a compilation of unprotectible elements,” because

“the original way in which the author has selected,

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coordinated, and arranged the elements of his or her work” is

protectible. Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71

F.3d 996, 1003-04 (2d Cir. 1995) (internal quotation marks

omitted).

A district court may dismiss a copyright infringement

claim on a Rule 12(b)(6) motion “either when the similarity

concerns only noncopyrightable elements of plaintiff[‘s]

work, or when no reasonable trier of fact could find the works

substantially similar.” Walker v. Time Life Films, Inc., 784

F.2d 44, 48 (2d Cir. 1986); see also Peter F. Gaito

Architecture, LLC v. Simone Development Corp., 602 F.3d 57,

64 (2d Cir. 2010)). “In copyright infringement actions, the

works themselves supersede and control contrary descriptions

of them, including any contrary allegations, conclusions or

descriptions of the works contained in the pleadings.” Peter

F. Gaito, 602 F.3d at 64 (internal quotation marks and

citations omitted). Accordingly, “no discovery or fact-

finding is typically necessary, because what is required is

only a visual [or aural] comparison of the works.” Id.

(internal quotations marks omitted).

“The standard test for substantial similarity between

two items is whether an ordinary observer, unless he set out

to detect the disparities, would be disposed to overlook them,

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and regard the aesthetic appeal as the same.” Id. at 66

(internal quotation marks and alterations in original

omitted). In other words, the test considers “whether an

average lay observer would recognize the alleged copy as

having been appropriated from the copyrighted work.” Id.

(internal quotation marks omitted). Where the infringement of

music is at issue, the ordinary observer test considers

whether the “defendant took from plaintiff’s works so much of

what is pleasing to the ears of lay listeners, who comprise

the audience for whom such . . . music is composed, that

defendant wrongfully appropriated something which belongs to

the plaintiff.” Repp v. Webber, 132 F.3d 882, 889 (2d Cir.

1997) (alteration in original) (quoting Arnstein v. Porter,

154 F.2d 464, 473 (2d Cir. 1946)).

If the works at issue “have both protectible and

unprotectible elements, [the] analysis must be more

discerning, and [the court] instead must attempt to extract

the unprotectible elements from [] consideration and ask

whether the protectible elements, standing alone, are

substantially similar.” Peter F. Gaito, 602 F.3d at 66

(internal quotation marks and citations omitted).

Under either analysis, however, a court is not “required

to dissect the works into their separate components, and

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compare only those elements which are in themselves

copyrightable.” Id. (alteration omitted). “Instead, [a court

is] principally guided by comparing the contested [work’s]

total concept and overall feel with that of the allegedly

infringed work, as instructed by [the court’s] good [ears]

and common sense.” Id. (internal quotation marks and

citations omitted). Thus, a court “must make sure to engage

in a holistic comparison of the two works, looking for

substantial similarity that is apparent only when numerous

aesthetic decisions embodied in the plaintiff’s work of

art—the excerpting, modifying, and arranging of unprotectible

components—are considered in relation to one another.”

McDonald, 138 F. Supp. at 456 (quoting Peter F. Gaito, 602

F.3d at 66) (internal quotation marks and alterations

omitted).

III. DISCUSSION

Defendants move to dismiss Nwosuocha’s sole

claim that Defendants engaged in direct, contributory, and

vicarious copyright infringement of Nwosuocha’s copyright in

Plaintiff’s Composition, via the Challenged Composition, in

violation of the Copyright Act, 17 U.S.C. §§ 101, et seq. For

the reasons explained below, the Court grants Defendants’

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Motion and dismisses the Complaint with prejudice to leave to

amend.

A. COPYRIGHT REGISTRATION

The Complaint alleges that “Nwosuocha is the sole and

exclusive owner of the U.S. Copyright in all rights, titles,

and interests in the Copyrighted Work, ‘Made in America,’”

and that the “Infringing Work[, “This is America,”] copies

quantitatively and qualitatively distinct, important, and

recognizable portions and/or elements of the Copyrighted

Work.” (See Complaint ¶¶ 75, 80.) Specifically, the Complaint

alleges that the

distinctive flow employed in Defendant Glover’s recorded

performance of the Infringing Work’s chorus, which is
the musical centerpiece of the Infringing Work and forms
the namesake for the Infringing Work’s song title, is
unmistakably similar, if not practically identical, to
the distinct and unique flow that was employed by
Nwosuocha in recording his vocal performance of his
rapping of the hook to his Copyrighted Work,

and “the lyrical theme, content, and structure of the

identically-performed choruses are also glaringly similar.”

(Id. ¶¶ 39-40.) Accordingly, the “Defendants’ unauthorized

reproduction, distribution, public performance, display,

creation of derivative works, and other exploitation and/or

misappropriation of the Copyrighted Work infringes

Nwosuocha’s exclusive rights in violation of the Copyright

Act, 17 U.S.C. § 101 et seq.” (Id. ¶ 76.)

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Defendants argue that Nwosuocha’s copyright claim fails

as a matter of law because Nwosuocha failed to register a

copyright for his composition of Plaintiff’s Composition

(Memorandum at 1-2.) Defendants note that Nwosuocha’s

Certificate of Registration is for a sound recording of

Plaintiff’s Composition, not for its musical composition,

meaning he cannot assert a copyright claim that the

composition has been infringed. (Id.; Dkt. No. 1-2.)

Nwosuocha responds that he is able to maintain a case

because the Copyright Office permits the submission of a

single recording to register copyrights in the sound

recordings and compositions of the submission, and that he

“used one sound recording registration to register his

collective work of sound recordings and underlying

compositions, filed the registration as sole claimant and

sole author of the collective work, and effectuated a valid

registration for the collective work extending to all musical

compositions therein, including for ‘Made in America.’” (See

Opposition at 1-2.) Nwosuocha argues further that under the

Supreme Court’s holding in Unicolors, Inc. v. H&M Hennes &

Mauritz, L.P., even if his registration contains inaccurate

information, presumably such as not identifying Nwosuocha as

creating the composition as well as the sound recording, the

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registration is nonetheless valid because Nwosuocha did not

know of the inaccuracies. 142 S. Ct. 941, 945 (2022); (see

Opposition at 1-2.)

The Court finds that Nwosuocha’s copyright claim fails

as a matter of law because Nwosuocha does not possess a

copyright registration for the musical composition of

Plaintiff’s Composition, only a registration for a sound

recording of the song. As other courts in this District have

explained, “[c]opyright protection extends to two distinct

aspects of music: (1) the musical composition, which is itself

usually composed of two distinct aspects—music and lyrics;

and (2) the physical embodiment of a particular performance

of the musical composition, usually in the form of a master

recording.” Pickett v. Migos Touring, Inc., 420 F. Supp. 3d

197, 205 (S.D.N.Y. 2019) (quoting Ulloa v. Universal Music &

Video Distribution Corp., 303 F. Supp. 2d 409, 412 (S.D.N.Y.

2004)). Here, the Complaint does not allege that Defendants

incorporated “the physical embodiment” or sound recording of

Plaintiff’s Composition. Rather, the Complaint claims that

Defendants infringed on the composition of Plaintiff’s

Composition, including the “lyrical theme, content, and

structure,” elements that go to the composition of the songs.

(Complaint ¶¶ 39-40.)

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Nwosuocha’s arguments that he possesses a copyright

registration for the composition of Plaintiff’s Composition

are without merit. First, Nwosuocha claims that he “used one

sound recording registration to register his collective work

of sound recordings and underlying compositions . . .

including for [Plaintiff’s Composition].” (See Opposition at

1-2 (emphasis in original)). Nwosuocha is correct that a

single recording may be submitted to the Copyright Office to

register for both a sound recording registration and a musical

composition registration provided that “the composition and

the sound recording are embodied in the same phonorecord, (2)

the author is the only performer featured in the recording,

and (3) the author is the only copyright owner of both works.”

(See Copyright Office Circular 56, Dkt. No. 96-2.) To obtain

both registrations, however, qualified applicants must mark

or detail in their applications that they are seeking both

types of copyright. (See id.)

For instance, if applicants use Form SR, which “should

be used when the copyright claim is limited to the sound

recording itself,” but “may also be used where the same

copyright claimant is seeking simultaneous registration of

the underlying musical, dramatic, or literary work embodied

in the phonorecord,” they must “include the appropriate

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authorship terms for reach author, for example ‘words,’

‘music,’ ‘arrangement of music,’ or ‘text.’” (See Dkt. No.

96-5.)

That the Copyright Office allows one submission to

register for both a sound recording registration and a musical

composition registration, however, does not mean that

Nwosuocha’s submission did so. Indeed, Nwosuocha’s

Certificate of Registration is only for a sound recording.

(See Dkt. No. 1-2.) Thus, Nwosuocha did not obtain both a

sound recording and a compositional copyright registration

with a single registration submission and lacks the copyright

registration necessary to his claims.

Second, Unicolors does not alter Nwosuocha’s failure to

register a copyright for the composition of Plaintiff’s

Composition. Unicolors addressed whether a certificate of

registration would remain valid despite containing inaccurate

information. 142 S. Ct. at 945. Here, there is no dispute

about the validity of Nwosuocha’s sound recording

registration and Unicolors does not otherwise support

Nwosuocha’s attempt to retroactively expand the scope of his

existing copyright registration. See id. Accordingly,

dismissal of Nwosuocha’s Complaint is warranted.

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Regarding the scope of such dismissal, Nwosuocha’s

failure to register a compositional copyright prior to filing

suit cannot be cured through amendment. See Malibu Media, LLC

v. Doe, No. 18 Civ. 10956, 2019 WL 1454317, at *2-3 (S.D.N.Y.

Apr. 2, 2019) (explaining how post-registration amendment and

relation-back would make a “meaningless formality” of the

requirement under 17 U.S.C. Section 411(a) that the copyright

registration be in place before a plaintiff’s bringing suit

for infringement). As noted previously, Section 411(a)

prohibits a civil action for copyright infringement from

being “instituted until preregistration or registration of

the copyright has been made in accordance with [Title 17].”

17 U.S.C. § 411(a). An action is “instituted by the

origination of formal proceedings, such as the filing of an

initial complaint.” United States ex rel. Wood v. Allergan,

Inc., 899 F.3d 163, 172 (2d Cir. 2018). Thus, Nwosuocha cannot

cure this defect by now obtaining a compositional

registration and amending the complaint.

B. COPYRIGHT PROTECTION AND SUBSTANTIAL SIMILARITY

Even if Nwosuocha had a copyright registration for the

composition of Plaintiff’s Composition, however, dismissal

would be warranted here because the elements of Plaintiff’s

Composition purportedly infringed upon are insufficiently

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original to warrant protection, or because they are not

substantially similar to the Challenged Composition.

As touched upon previously, the Complaint alleges that

the

distinct and unique vocal cadence, delivery, rhythm,

timing, phrasing, meter and/or pattern,” or “flow,”
“employed in Donald Glover’s recorded performance of the
Infringing Work’s chorus, which is the musical
centerpiece of the Infringing Work and forms the
namesake for the Infringing Work’s song title, is
unmistakably substantially similar, if not practically
identical, to the distinct and unique flow that was
employed by Nwosuocha in recording his vocal performance
of his rapping of the hook to his Copyrighted Work.

(Complaint ¶ 39.) The Complaint further alleges that “the

lyrical theme, content, and structure of the identically-

performed choruses 3 are also glaringly similar,” specifically

highlighting the following song portions:

Made in America This is America

[I’m] Made in America This is America

Flex on the radio Guns in my area
Made me a terrorist I got the strap
Pessimistic n***as I gotta carry ‘em
You should just cherish this - or –
This is America
Don’t catch you slippin’ now
Don’t catch you slippin’ now
Look what I’m whippin’ now

3 The exact portion of the songs that constitute the referenced “chorus”
or “hook” are not specified, and the Complaint uses these terms
inconsistently. The terms first refer solely to the titular lyrics of the
songs, but then are used to refer to a larger portion of each song, with
the hook or the chorus having a “central lyrical refrain” for instance.
(Complaint ¶¶ 39, 40.)
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(Id. ¶ 40.) 4

Additionally, the parties agree, and the Court concurs,

that the Complaint does not allege infringement of the

“overall structure of the songs, order, and number of verse

and chorus sections,” or the “instrumentation,” “musical

notes,” or “musical production.” 5 (See Opposition at 2-6;

Memorandum at 4-6; Complaint ¶¶ 39-40.)

The Court finds that the “distinct and unique vocal

cadence, delivery, rhythm, timing, phrasing, meter and/or

pattern” or “flow” as well as the “lyrical theme” and

“structure” of the chorus in Plaintiff’s Composition lack

sufficient originality alone, or as combined, to merit

compositional copyright protection or are categorically

ineligible for copyright protection. (Complaint ¶ 39.) For

instance, Nwosuocha asserts copyright over the “lyrical

theme” of Plaintiff’s Composition, but a lyrical theme is

simply an idea, and ideas are not protectable. Moreover, the

4 The Court notes that the lyrics for Plaintiff’s Composition in the
Complaint and the musicologist report attached to the Complaint are
notably incomplete. (See Dkt. Nos. 1, 1-4.) Nwosuocha says the word “I’m”
before saying “made in America,” and thus the lyrics should be presented
as “I’m made in America.” The Court further notes that the musicologist
report entirely failed to consider or analyze any prior art, such as other
songs that use “total triplet flow.” (See Dkt. No. 1-4.)
5 As referenced in the parties’ briefing, “musical production” here refers

to the selection and use of instruments, singing, rapping, and background

vocals, including choir and samples. (See Memorandum at 5; Opposition at
3-4 (referring to this as “overall melodic ‘impression’”).)
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idea of a boastful rapper is certainly not original to

Nwosuocha.

The Court further finds that although the “content” of

the chorus of Plaintiff’s Composition, which the Court

understands to mean the lyrics, bears sufficient originality

to merit compositional protection, a cursory comparison with

the Challenged Composition reveals that the content of the

choruses is entirely different and not substantially similar. 6

As noted previously, the “question of substantial similarity

is by no means exclusively reserved for resolution by a jury”

and the Second Circuit has “repeatedly recognized that, in

certain circumstances, it is entirely appropriate for a

district court to resolve that question as a matter of law,

either because the similarity between two works concerns only

non-copyrightable elements of the plaintiff’s work, or

because no reasonable jury, properly instructed, could find

that the two works are substantially similar.” Peter F. Gaito,

602 F.3d at 63. Here, no reasonable jury, properly instructed,

could find that the lyrics of the chorus of Plaintiff’s

Composition and the chorus of the Challenged Composition are

substantially similar.

6 This holds true under either observer standard or when assessing the
songs holistically.
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Returning to the songs, as Defendants detail in their

Memorandum, “Plaintiff’s Composition is a short, simple,

self-aggrandizing proclamation with Plaintiff stating

repeatedly: ‘I’m made in America,’ [] alert[ing] rappers of

Plaintiff’s arrival [] and his success,” “attribut[ing] his

success, and the envy it creates to his record sales” but

“recogniz[ing] his celebrity and swagger pose dangers from

the” police. (Memorandum at 5.) By contrast, “the Challenged

Composition is not about a rapper, but” “addresses

contemporary America, what America means and how it is

perceived,” and is “anchored by the common phrase ‘This is

America.’” (Id.)

More could be said on the ways these songs differ, but

no more airtime is needed to resolve this case.

IV. ORDER

For the reasons stated above, it is hereby

ORDERED that the motion filed by defendants Donald

McKinley Glover, II, Jeffrey Lamar Williams, Ludwig Emil

Tomas Göransson, Kobalt Music Publishing America, Inc. d/b/a/

Songs of Kobalt Music Publishing, Sony Music Entertainment,

Young Stoner Life Publishing, LLC, 300 Entertainment LLC

f/k/a Theory Entertainment LLC d/b/a 300 Entertainment,

Atlantic Recording Corporation, Roc Nation Publishing d/b/a

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Songs of Roc Nation, Songs of Universal, Inc., and Warner-

Tamerlane Publishing Corp. to dismiss the Complaint of

plaintiff Emelike Nwosuocha (Dkt. No. 1) pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure is GRANTED

with prejudice to leave to amend. The Clerk of Court is

respectfully directed to terminate the Motion to Dismiss at

Dkt. No. 93 as well as any other pending motions and close

the case.

SO ORDERED.

Dated: New York, New York

24 March 2023

________________________
Victor Marrero
U.S.D.J.

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