14 May 14 May 2021
In this issue of ZOOM-IN Brief, Childish Gambino sued over “This is America” song; Amber Heard pursues dismissal of Depp’s US defamation suit; and Nirvana in hellish copyright dispute.
Actor and performer Donald Glover aka Childish Gambino has been sued by a Florida rapper over copyright infringement in his Grammy Award winning hit single, “This Is America”.
The rapper Emelike Nwosuocha (aka rapper Kidd Wes) seeks damages and an injunction arising from his allegation that there are substantial similarities between his 2017 song “Made in America”, which he uploaded to Soundcloud and YouTube, and Glover’s work.
His complaint says that “the substantial similarities between both songs include, but are not limited to, nearly-identical unique rhythmic, lyrical, and thematic compositional and performance content contained in the chorus – or “hook” – sections that are the centerpieces of both songs”.
The complaint is also brought against a number of other individuals and corporate entities involved in Glover’s 2018 track, including rapper, Young Thug. It points to the similarities between Glover’s “distinctive flow” and the “unique flow” used for the hook of Nwosuocha’s song and adds that, “…the lyrical theme, content, and structure of the identically-performed choruses” are also “glaringly similar”.
The complaint relies on comments from members of the public drawing attention to the similarities between the works, for example a comment on Soundcloud saying “Gambino ripped this shit off you G”, as well as on evidence from an “Esteemed University of Miami Musicologist”. Nwosuocha refers to the fact that Glover and the other defendants have “profited in the amount of hundreds of millions of dollars” and is demanding a trial by jury in his complaint, which, unlike in the UK, is a mode of trial available in copyright infringement cases in the US.
The claim is the most recent example of high-profile hits becoming the target of copyright infringement claims, a trend which came to prominence with an award by a Court to the estate of Marvin Gaye in relation to infringement by Pharrell Williams and Robin Thicke’s hit Blurred Lines.
After the Blurred Lines claim led to a $5million (£3.5million) judgment, many similar claims, against artists such as Ariana Grande and Miley Cyrus, have resulted in settlements, with defendants understandably reluctant to take their chances before a jury.
Amber Heard has sought to have Johnny Depp’s $50million (£35.5million) defamation claim in the US thrown out following the failure of his UK claim against the publisher of The Sun, after the trial in the American litigation was pushed back by the Virginia court to 2022.
The US claim has been brought over statements in an op-ed written by Heard in the Washington Post in 2018, which did not name Depp, but in which she alleged she was a victim of domestic abuse. Depp believes it cost him a role in Disney’s Pirates Of The Caribbean and brought a claim for defamation in Virginia, where the Washington Post is printed.
In February of this year, the trial, which was due to be heard in May after having already been rescheduled several times, was pushed back as a result of delays in the Virginia court system caused by the coronavirus pandemic. It will now take place on 11 April 2022, when it is due to be heard over two weeks before a jury – the UK libel case which Depp recently lost was decided by a single judge.
Following the dismissal of Depp’s application for permission to appeal by the Court of Appeal in London, Heard has argued that the Virginia case should be dismissed.
“Giving full effect to the UK Judgments necessitates a finding that statements in the op-ed published in the Washington Post are true – Mr. Depp committed domestic violence against Ms. Heard on many occasions, causing her to fear for her life,” read a document prepared by her lawyers. The document asked the court in Virginia to recognize the ruling by the trial Judge in London, who sided with Heard and the newspaper. It also emphasised the Court of Appeal’s dismissal of Depp’s effort to appeal. “Therefore, as a matter of law, Depp cannot prevail on any of his claims, and Depp’s complaint against Ms. Heard should be dismissed in its entirety,” continued the document. “Depp cannot relitigate these factual issues, and as a result of their preclusion, he cannot claim that the statements are false and ‘actionable’ under Virginia defamation law, so his claims are barred as a matter of law,” it added.
As in English law, there is what’s called an “issue estoppel” or “collateral estoppel” doctrine in US law, which means that it may be possible to obtain judgment against a party in the US where the issues in the claim have already been decided against them in a judgment of a competent foreign court.
This could mean that Depp is prevented from relitigating issues relating to the allegations of domestic abuse which have already featured in the English claim, although the application of this principle can be very complex in practice.
The scope of the US litigation has also expanded recently, with subpoenas issued earlier this year against Elon Musk and the American Civil Liberties Union. The delayed trial will offer the chance to both sides to develop their cases ahead of the claim finally being heard by a jury next year unless this latest application by Heard is successful.
Rock band Nirvana has been sued for copyright infringement over their unauthorised use on merchandise of an illustration from a 1949 translation of Dante’s Inferno.
The claim in Los Angeles has been brought by an Englishwoman, Jocelyn Bundy, whose grandfather, C. W. Scott-Giles, drew an illustration of “Upper Hell” as depicted by the Italian poet Dante Alighieri in his “Divine Comedy”. The illustration was created in 1949 to accompany an English translation of the first volume of the trilogy, named “Inferno” or “Hell”, by the English poet and crime novelist Dorothy L. Sayers. Sayers’ “Hell”, with Scott-Giles’ illustrations, first appeared in 1949, as one of the then-recently introduced series of Penguin Classics.
The claim against Nirvana LLC and a number of other defendants alleges that they have been “licensing, promoting, selling, manufacturing, and distributing vinyl records, t-shirts, sweaters, hoodies, key fobs, mugs, patches, buttons, and other merchandise items depicting an image virtually identical to the Illustration both in the US and abroad. ”It goes on to allege both that this unauthorised use dates as far back as 1989 and that the band has made “false claims of ownership of the copyright in the illustration by placing false copyright notices on the infringing products in substantially this form ‘© [Year] Nirvana’.”
Bundy is the only surviving relative of Scott-Giles, who died in 1982, and his successor in title. The use of Scott-Giles’ work by the seminal grunge-rockers only came to Bundy’s attention as a result of a claim brought by the band itself as claimant against fashion designer Marc Jacobs, over his allegedly breaching copyright in their smiley face logo and signature font in a T-shirt design.
In those proceedings, band member Krist Novoselic and manager John Silva said that Nirvana’s “Happy Face” t-shirt was similar to another t-shirt allegedly created by Kurt Cobain, which Nirvana fans refer to as the “Seven Circles of Hell” or “Vestibule” design.
Nirvana’s response to the claim is that the “Upper Hell” illustration is in the public domain and that while the first edition of the Penguin book included a copyright notice stating “Copyright 1949 by Dorothy L. Sayers” the notice wasn’t subsequently registered or renewed with the U.S. Copyright Office.
Bundy’s case is that the illustration is a “foreign work” for the purposes of US copyright law which is protected both in the US and elsewhere. One important issue in the case will be the protection US copyright law provides for a work first published in a foreign country.
Unusually, Bundy has also asked the US court to determine her claim for copyright protection under foreign law, namely the law of the UK and Germany, where, she says, the bulk of the defendants’ infringing activities outside the US are concentrated. There is no requirement in UK copyright law for the formalities such as registration which may need to be undertaken for a work to enjoy protection in the US.
The case looks set to involve an unusually large range of interesting copyright legal issues which could well have significant consequences for copyright law on both sides of the Atlantic. Zoom-in will report on further developments.
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