President-elect Donald Trump has settled the copyright infringement lawsuit filed against him by Eddy Grant over the unapproved use of ‘Electric Avenue’ in a campaign video during the 2020 US presidential election. It follows a court ruling in Grant’s favour in September which rejected Trump’s fair use defence.
The judge overseeing the case, John G Koeltl, has issued an order that states, “It having been reported to this court that the parties have settled this action, it is hereby ordered that this matter be discontinued with prejudice”.
The ‘with prejudice’ bit means that Grant can’t file any future litigation in relation to this dispute. Although, Koeltl did add that Grant can still apply to re-open the case at any point in the next 30 days if the settlement falls through at the very final hurdle.
Terms of the settlement are confidential, as is usually the case, but it means Trump doesn’t plan to appeal September’s ruling. Maybe because he reckons he’ll be far too busy running the free world to be appealing copyright litigation in 2025, or maybe his legal team decided that higher courts would also likely reject their fair use defence.
September’s ruling in this case potentially has an impact on any other artists whose music has been used in Trump campaign videos without licence and who feel like making a copyright claim.
When Trump uses music at his rallies, he is often covered by the blanket licences issued by the music industry’s collecting societies. Songwriters can opt out of those licences, though things are still a little more complicated when it comes to the use of music at events.
However, with music used in campaign videos, a bespoke licence is required from the relevant copyright owners. Unless, that is, a case can be made that the use of music is fair use under American copyright law, which would mean permission from the relevant copyright owners is not required.
In this case, the campaign video featured an animation of 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 Grant’s 1980s hit ‘Electric Avenue’, used without permission, and extracts from Joe Biden’s speeches.
Trump’s team tried to argue that the video’s use of Grant’s track was transformative and a parody, which meant it was fair use.
But Koeltl ruled that “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”, meaning it wasn’t a transformative use. And, as for the parody 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”.
The precedent set in that ruling - which will now go unchallenged - could empower other litigious artists whose music has been used by Trump in campaign videos.
Though the most recent lawsuit accusing Trump of copyright infringement over a campaign video - filed by The White Stripes in relation to a video featuring ‘Seven Nation Army’, which was posted during this year’s election campaign - was voluntarily dismissed shortly after this month’s election. That said, that dismissal was “without prejudice”, so it could as yet be re-filed.