Childish Gambino’s “This Is America” is not one of the best songs released in the past year. It’s a good song — frantic and mournful and rattling — but it’s not one of the best songs of the year. Yet there it is, nominated for both a Song of the Year and Record of the Year Grammy. This isn’t a problem in and of itself — the Grammys are often comically wrong in what they choose or not choose to nominate — but “This Is America” is most notable for its music video, easily one of the best of the year, not its recorded version, and the Grammys are not the VMAs.
You’ve seen the clip. Seemingly everyone has, including Grammy voters. By dropping that video on the night of a performance on Saturday Night Live, Donald Glover (and team) mesmerized viewers with the vicious, choreographed piece of artistry. Overnight, the internet erupted into enthusiastic close reads, thinkpieces and straightforward cheerleading. In a year just one step further down the long road of internet-abetted fragmentation, “This Is America” was a unique gather-round-the-screen moment; the rare piece of entertainment you had to watch simply to keep up with the conversation. The attention propelled the song to Number One on the Billboard Hot 100, wresting the top spot away, briefly, from Drake. In creating a music moment that had less to do with the song than its stunning visual, Glover resumed his continued dominance at the annual award show.
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Similarly, Drake’s success in the general interest category can be attributed to his eye (and heart) for the music video as an art form. This year, the sprawling Scorpion netted Drake three massive singles. He spent months at the top of the charts, trading out “God’s Plan,” “Nice For What,” and “In My Feelings” at Number One. For much of the year, it felt like Drake’s only competition for commercial dominance was himself. Of those songs, “In My Feelings” is the easy bet for a Song of the Year nomination. It’s the least straightforward rap song of the bunch and the least likely to have its genre get in the way of it winning any hardware. It’s the catchiest song of the year and the only single of Drake’s to begin to get play outside of urban radio, jamming itself into playlists on pop radio around the country.
But it’s “God’s Plan,” the simplest of the trio and the one that’s squarely a rap song, that is up for Song of the Year. It’s tough to say why that is, exactly, but part of it could have to do with Drake giving away $1 million. While the superstar clearly spent a lot of time and energy (and was aided by the directorial talents of Karena Evans) on his videos this year, it was “God’s Plan” that became the breakout for the video itself. In it, Drake travels around Miami, giving away the video’s ostensible $1 million budget to increasingly grateful people. It’s touching and, like “This Is America,” it struck a chord.
For artists that are looking to win the Grammy for the Song of the Year, the straightest path to success is rarely to simply write and record the best song of the year. Instead, there are a constantly shifting host of criteria, most of them impenetrable (likely even to Grammy voters themselves), to consider. This year, there’s another path to success in this category: Make a music video that literally everyone in America watches at least once and talks about for the rest of the year, and the awards will sort themselves out.
BET Awards host Jamie Foxx has been keeping things light so far in the broadcast, which honors the best in black entertainment, but not when it comes to Childish Gambino’s “This Is America.”
“That song should not be joked about,” said Foxx going off-script from the Microsoft Theatre stage on Sunday night (June 24). The night’s emcee proceeded to mimic Donald Glover’s dance moves in the provocative video released last month as Glover watched from the crowd.
Foxx continued: “This young man, Childish Gambino, Donald Glover — singer, songwriter, philanthropist, movie star, overall badass. … A true artist. … I wanna acknowledge you.”
Inviting Glover to the stage, the two embraced, then Glover took a microphone to deliver a couple of verses from “This Is America.” He then continued: “I’m really happy to be in this room with everybody,” said the “Atlanta” star shouting out Lena Waithe, Issa Rae (the latter not in attendance) and the HBO series “Insecure.” “I really was not expecting to get up here,” said Glover with a laugh.
Foxx did joke a bit about the impact Glover has made on entertainment in the last few years, noting Glover’s awards show attire. “Pajamas,” said Glover.
Cracked Foxx: “[Like] you just rolled out of bed. That’s how you know you’re rich — get out of bed with your pajamas on and come to the BET Awards.”
The BET Awards cap off a weekend of events that includes concerts by Sza and Chris Brown as well as label and artist parties. Leading the nominations are DJ Khaled with six including Video of the Year, Kendrick Lamar with five and Migos with four including Best Group and Album of the Year. For the full list of winners, head here.
Jamie Foxx is a big fan of Donald Glover's sensational song 'This Is America.' Foxx made that clear at the 2018 BET Awards on Sunday (June 24), where he interrupted his hosting duties mid-ceremony to give a shout-out to the stirring social critique, which Glover released in May under his music moniker Childish Gambino.
After dancing his own rendition of the famous choreography Glover performs in the song's music video, Foxx even motioned for Glover to join him onstage, where Glover offered a flawless impromptu mini-performance of the track's opening lines. It was up to the crowd to fill in the song's signature 'yeah, yeah, yeah' chants.
But Foxx couldn't let Glover go before poking fun at the rapper's pajama-like outfit, with Glover explaining that he didn't realize he'd be appearing onstage when he chose his look for the night.
Watch a clip of Glover's spontaneous performance below.
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.
Larry Iser is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litigates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.
'>Donald Glover performs at the 2018 BET Awards. (Photo by Paras Griffin/VMN18/Getty Images for BET)
Childish Gambino Music Awards List
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.
Donald Glover Awards
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?
Donald Glover Emmy Awards
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.
Larry Iser is a litigator atKinsella Weitzman Iser Kump & Aldisert. He frequently litigates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.