A New York judge has ruled that Donald Trump’s election campaign committed copyright infringement when it used Eddy Grant’s ‘Electric Avenue’ without permission in a video posted online in 2020.
In his ruling, Judge John G Koeltl demolishes arguments from the Trump campaign that use of the track was ‘fair use’ under American copyright law, which would mean no permission was required. The Trump campaign said that the video was covered by fair use because it “transformed Grant’s original conception of ‘Electric Avenue’ as a protest against social conditions into a colorful attack on the character and personality traits of a rival political figure”.
Koeltl examines the four pillars of the fair use defence - and gives detailed reasons for why the Trump campaign’s use of Grant’s music in the video is not, in fact, fair use. Which is important, because it seemed likely Trump would try to use the same defence in the new lawsuit over the use of The White Stripes ‘Seven Nation Army’ in a more recent campaign video.
Trump specifically claimed that his use of ‘Electric Avenue’ was transformative and constituted parody or satire. But, Judge John G Koeltl, concludes, “The video’s creator did not edit the song’s lyrics, vocals or instrumentals at all, and the song is immediately recognisable when it begins playing”. And as for satire claims, “the animation does not use ‘Electric Avenue’ as a vehicle to deliver its satirical message, and it makes no effort to poke fun at the song or Grant”.
In August 2020, when campaigning in the last US presidential election, the Trump campaign posted an animated video on Twitter which featured a high-speed train branded “Trump Pence: Keep America Great 2020” and a slow-moving handcar that contained the words “Biden President: Your Hair Smells Terrific”. The video was soundtracked with ‘Electric Avenue’ and extracts from Joe Biden’s speeches.
It transpired that a Trump supporter had actually created the video, which the campaign then posted on Trump’s Twitter account. Grant and his companies issued a cease and desist letter to the campaign on 13 Aug 2020. The tweet was not removed and so, on 1 Sep, Grant sued.
When Trump uses music at his events he can often rely on his blanket licences from the music industry’s collecting societies like BMI and ASCAP. However, when music is synchronised into a campaign video, those licences do not apply, meaning a bespoke licence is required from whoever controls the rights in the recording and the song. In the case of ‘Electric Avenue’, Grant’s company controlled both.
Having secured no such licences, the Trump campaign relied on the fair use defence. In his ruling granting a summary judgement in Grant’s favour, Koeltl sets out the four factors to be considered when assessing a defence of fair use.
Those are “the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use upon the potential market for the copyrighted work”.
Of those factors, the most important was the first, because that’s where Trump’s claims that his use of ‘Electric Avenue’ was transformative and parody are relevant. Pretty much repeating comments previously made when declining to dismiss Grant’s lawsuit in 2021, the judge said “the video has a very low degree of ‘transformativeness’ if any at all”. And it makes no satirical comment on the song or Grant, which would be necessary to qualify as parody.
As for the other fair uses factors, Grant’s song is creative rather than factual, which means there is less “leeway” for a fair use claim; the track plays for most of the video; and if Trump is allowed to use the track without licence, that would negatively impact on the market for sync licensing.
The Trump campaign raised a second legal technicality in its defence: Grant never registered the sound recording copyright in the track in the US. Although copyright is an automatic right, in the US a copyright needs to be registered in order to enforce it in court.
However, in the early 2000s Warner Music registered an Eddy Grant greatest hits album that featured ‘Electric Avenue’, which the major had licensed off the musician. Koeltl concludes that that means ‘Electric Avenue’ had also been registered in its own right as well.