IP Law Daily, COPYRIGHT—2d Cir.: Donald Glover will collect attorney fees after defeating copyright infringement lawsuit, (Feb 20, 2026)

By Matthew Hersh, J.D.

The district court’s award of $286,000 in fees will stand.

A songwriter and rapper who brought a losing copyright infringement lawsuit against a prominent actor and rap musician will be required to pay over one quarter of a million dollars in attorney fees because he insisted on proceeding with the claim even though he did not have a registration for the musical composition at the heart of the lawsuit, the U.S. Court of Appeals for the Second Circuit has held. The court, in finding that a district court did not abuse its discretion in awarding the fees, emphasized that the musician who lost the suit could not get a free pass just because he was not a “serial litigant” (Nwosuocha v. Glover, No. 25-647 (2d Cir. Feb. 19, 2026)).

The lawsuit involved “This Is America” the 2018 megahit by actor and musician Donald Glover Jr. The rap song, performed under Glover’s now-retired stage name Childish Gambino, debuted at number one on the Billboard charts and won multiple accolades—among them, Song of the Year and Best Music Video—at the Grammy Awards. The lyrics of the song focus largely on the themes of black culture, gun violence, and police misconduct.

The lawsuit was brought by Emelike Nwosuocha, the songwriter and rapper behind a 2016 sound recording entitled “Made in America.” Nwosuocha, who goes by the stage name Kidd Wes, contended in his complaint that the substantial similarities between both songs included, among others, “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 lawsuit took aim at Glover, his collaborating songwriter and producer, and a wide range of record labels allegedly responsible for the recording and distribution of the song.

The district court dismissed the complaint in 2023 on two grounds. First, the court found that Nwosuocha had registered only the sound recording and not the underlying musical composition that was at issue in his lawsuit. Second, the court found, the two songs were not substantially similar. (The Second Circuit affirmed the dismissal on registration grounds, in an unpublished order, without reaching the substantial similarity issue.) The district court then granted Glover roughly $260,000 in attorney fees.

Nwosuocha appealed the award of attorney fees, leading to this opinion.

Attorney fees. The court of appeals affirmed the award of attorney fees. In determining whether to award attorney fees, the court noted, a district court should consider the following factors: “frivolousness, motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.” Although the objective reasonableness factor carries “significant weight” in a district court’s consideration of these factors, the court of appeals noted, a district court must “view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals.”

Under that test, the court found, the district court had it right. The district court found that Nwosuocha’s claims were objectively unreasonable because he did not have a copyright registration for the musical composition on which his claims were based, which is “a prerequisite to bringing a copyright infringement suit.” Moreover, despite “being put on notice of these fundamental flaws,” the court noted, Nwosuocha “continued to press his claim.” The district court also found that that while Nwosuocha was not a serial copyright litigant, the motivation factor modestly favored Glover because Nwosuocha’s decision to bring his claim years after the challenged song gained widespread success “suggested that the suit was opportunistic.” Finally, the court of appeals noted, the district court found that a fee award “would deter similarly unreasonable suits but would not unduly chill litigants from bringing close or novel claims because Nwosuocha’s claim was ‘without merit on its face.’” This analysis by the district court, the court of appeals concluded, easily supported the award of fees.

None of Nwosuocha’s challenges to the award had merit, the court found. Nwosuocha argued that the district court wrongly tagged him with having an improper motive merely because he wanted to profit from his lawsuit. But that was not what the district court said, the court of appeals emphasized. Rather, the court noted, the district argued that the timing of his suit—“years after [Glover’s] song had generated widespread commercial success and received critical claim”—is what suggested opportunism. Nor could Nwosuocha get a pass just because he was a one-time plaintiff as opposed to a “serial litigant,” the court of appeals noted. To be sure, the court noted, while the fact that Nwosuocha was not a serial litigation may have weighed in his favor, it still did not overcome the fact that his lawsuit was objectively unreasonable. As the Supreme Court has explained, the court of appeals noted, “when a copyright holder with no reasonable infringement claim has good reason not to bring suit in the first instance, such a result promotes the Copyright Act’s purposes.”

Finally, the district court did not err in evaluating the relative financial position of the parties. Nwosuocha challenged the district court’s fee calculation of fees, asserting that it “failed to take into account the ruinous nature of the fee award upon [him] in determining the appropriate amount.” But the district court did take this factor into account, the court of appeals found. Indeed, though Glover and his co-defendants sought $934,653.85, the court of appeals noted, the district court awarded only $286,475.10 in fees. In doing so, the court noted, it explicitly considered “the relative financial positions of the parties” and “assessed ‘whether, in light of [Nwosuocha’s] ability to pay, a lesser sum assessed would fulfill the statute’s deterrence purpose without subjecting him to financial ruin.’” In doing so, the court of appeals noted, the district court then “applied a 25% across-the-board reduction of the fee amount.” There was no abuse of discretion in that award, the court found.

The Case is No. 25-647.

Judge: Park, M.

Attorneys: Andrew Grimm (Digital Justice Foundation) for Emelike Nwosuocha. Jonathan Davis (Jonathan D. Davis, P.C.) for Donald Mckinley Glover.

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