Childish Gambino Accused Of Stealing “This Is America”

On Sunday night, following an appearance by Donald Glover (who performs musically as Childish Gambino) on the BET Awards, allegations surfaced that Glover had plagiarized his 2018 # 1 hit single “This Is America” from rapper Jase Harley’s song “American Pharaoh.” The controversy began on Reddit and spread through Twitter and Instagram.

Glover’s creative partner and “This Is America” music video producer Fam Rothstein – who co-runs the creative agency Wolf + Rothstein with Donald Glover and Wolf Taylor – denied the plagiarism claim on Twitter, writing that the “song is 3 years old, and we have Pro Tools files to prove it.” Several hours later, the plot thickened when Rothstein’s tweet was deleted. Do they have the ProTools files that pre-date Harley’s 2016 “American Pharoah,” or not?

Harley also responded on Monday, and chose to take the high road, at least for now. Although a blogger, the Twittersphere and now many commenters claim that “This Is America” bears resemblance to Harley’s song, Harley implied that he does not intend to pursue legal action against Glover. Rather, Harley posted on his Instagram that he is “extremely humbled” to have inspired “one of the most important pieces of music and visual art of our time.” Harley emphasized that focusing on the “controversy” distracts from the larger message about racial injustice that both artists “are trying to convey.”

Proving a claim for musical plagiarism is complicated and very expensive. The accused party’s intent in creating the song doesn’t matter – as a strict liability tort, a copyright infringement claim need only prove that two songs are “substantially similar” and that the accused infringer could have reasonably had access to the allegedly infringed piece. Substantial similarity, however, is difficult to argue for multiple reasons. First, similarity must be found across multiple musical elements, such as melody, rhythm, and lyrical content. The more shared elements, the stronger the infringement claim. Second, songs are copyrighted in two different ways: composition and sound recording. Both of these copyrights have to be separately investigated for possible infringement, as sound recordings often include numerous elements that are not reflected in the original composition. Musicologists are brought to court as expert witnesses to help evaluate compositions and sound recordings.

If Harley changes his mind and sues Glover for copyright infringement, he’d also have to prove that the allegedly plagiarized elements, such as his melody, lyrics, rhythm or chord progression, were original to Harley and not found in other songs that pre-dated his “American Pharoah.” Glover, in turn, would likely argue that he independently created “This is America” by demonstrating that the supposedly infringing song originated without influence by or access to the other song. Rothstein’s claimed 3-year-old Pro Tools files would be instrumental in this line of argument, as they would demonstrate the originality of the creative process that led to the song.

 








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