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Donald Trump seeks dismissal of Electric Avenue lawsuit on fair use grounds

By Chris Cooke | Published on Friday 13 November 2020

Donald Trump’s legal team are currently popping in and out of courthouses all across America as part of that grand experiment to see if any judge anywhere might respond positively to the US President’s big pile of non-arguments and no-evidence regarding fraudulent voting in last week’s big election. So it’s almost impressive that they also had time to stop by a district court in New York to respond to Eddy Grant’s copyright infringement lawsuit. But that they did. And with a lovely fair use defence.

By our maths, Grant was the 407,981st artist to complain about Trump using one of their songs in his political campaigning without permission. In most cases, artists get angry after their music is played at one of Trump’s rallies. However, in Grant’s case, his track ‘Electric Avenue’ was used in a campaign video that dissed Joe Biden. That’s important in copyright terms, because whereas music played at rallies may be covered by a blanket licence from collecting societies like BMI and ASCAP, when a track is synchronised into an advert, a bespoke licence is required.

With the Trump campaign having no such licence, Grant sued in September. His lawsuit confirmed that neither he nor his companies “nor any agent on their respective behalves, has licensed any rights” in the ‘Electric Avenue’ song or recording “to either Mr Trump or [his campaign organisation], or otherwise consented to defendants’ use of the [track] in connection with the infringing video”.

But no licence was actually required, reckon Trump’s attorneys in their response to that lawsuit. Because the campaign’s use of Grant’s track – alongside out-of-context excerpts from Biden’s past speeches and interviews – was “fair use” under US copyright law. Fair use, of course, is the concept under US law that says people can make use of copyright works without permission, providing that usage is “fair”.

In seeking to make a case for the fair use claim, Team Trump say that the video only used a portion of the track, that the usage didn’t impact on the market value of the original record, and – perhaps most importantly – the use of ‘Electric Avenue’ was “transformative” and “comedic”.

“A reasonable observer would perceive that the [campaign video] uses the song for a comedic, political purpose – a different and transformed purpose from that of the original song. Moreover, in light of the obvious comedic or satirical nature of the [campaign video], a reasonable observer would regard the [campaign video] as criticism or commentary”.

While the fair use concept under US copyright law is somewhat ambiguous and open to interpretation, those don’t seem like the strongest arguments for getting Grant’s case dismissed on fair use grounds. Though they are by no means the weakest arguments presented by a Trump lawyer this week.