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   Eddy Grant Wins: Trump’s ‘Fair Use’ of ‘Electric Avenue’ Was Anything But   
   September 16, 2024 by Andy Maxwell   
      
   Home > Lawsuits >   
      
   British musician Eddy Grant has prevailed in his copyright infringement   
   lawsuit against Donald Trump and his 2020 campaign team over their   
   infringing use of the iconic track 'Electric Avenue'. After consuming four   
   years of Grant's life, the case turned on a fair use defense; under   
   scrutiny of the court, it effortlessly failed to convince on any of the   
   four factors that combine to indicate a permitted, non-infringing use of a   
   copyright work.   
      
   grant-trump-fair use-sAs Donald Trump used every available resource to   
   ensure his tenancy at the most recognizable house in the United States was   
   extended, some social media platforms had adopted an unorthodox approach to   
   his accounts.   
      
   Despite receiving a number of takedown notices alleging copyright   
   infringement in Trump’s tweets, and in some cases removing content in   
   response to apparently valid claims, the president’s account wasn’t   
   suspended or terminated as is often the case.   
      
   That allowed one of Trump’s team to post a tweet containing a short   
   animation; a train sporting Trump’s campaign logo being pursued at some   
   distance by rival Joe Biden on a railroad handcar failing to keep up. For   
   reasons that remain unknown, the animator chose the 1982 hit ‘Electric   
   Avenue’ by British singer-songwriter Eddy Grant as the animation’s   
   soundtrack.   
      
   The animator didn’t ask Grant for permission and when the Trump team   
   spotted the animation on Twitter, a decision was made to post it on Trump’s   
   Twitter account, also without asking Grant for permission. Grant responded   
   with a cease and desist notice and when that was ignored, Grant sued Trump   
   and his team for copyright infringement.   
   Judge’s Opinion Was Just His Opinion?   
      
   In an ideal world, the failure of Trump’s motion to dismiss in September   
   2021 should’ve been seen as an opportunity to settle the case privately.   
      
   A very small slice of humble pie and some tea, perhaps, so that everyone   
   could move on. Or even negotiating the terms of the settlement Grant   
   offered in August 2020 before filing the lawsuit.   
      
   Instead, U.S. District Judge John Koeltl’s opinion and order, which painted   
   a clear picture of how successful a fair use defense was likely to be in   
   this matter, appears to have carried little weight with the defense. That   
   was surprising.   
      
   Judge Koeltl had described the use of Electric Avenue as “wholesale   
   copying” to support a political ad campaign, and noted that the defense had   
   misunderstood “the focus of the transformative use inquiry.” The defense   
   had also admitted that the animation was not fair use-friendly parody, but   
   its less useful cousin, satire.   
      
   Judge Koeltl went to state that the defense had offered no justification at   
   all for their “extensive borrowing” nor had they provided any evidence that   
   use of the work had caused no market harm. In fact, such was the total   
   disconnect between the use of Electric Avenue and the animation, the   
   campaign could’ve chosen any other track, or indeed no track at all, to   
   send the same message.   
   Four Year Legal Grind   
      
   What the defense were hoping to find isn’t clear but after failing to   
   convince the court in October 2021 that Trump had “Presidential absolute   
   immunity” in respect of Grant’s claims, the case dragged on for another   
   three years, four years in total.   
      
   Exactly a year ago, September 15, 2023, the plaintiffs and defendants filed   
   motions for summary judgment at a Manhattan federal court. The defendants   
   informed the court that they would rely on a fair use defense, despite   
   Grant’s legal team asserting that discovery had “revealed unequivocally”   
   that the use of Electric Avenue was not transformative.   
   Fair Use Defense Fails, Defense Liable for Infringement   
      
   Judge Koeltl had formed the same opinion two years earlier and in an   
   opinion and order dated September 13, 2024, he offers a reminder of his   
   order handed down several years earlier.   
      
   “In an Opinion and Order dated September 28, 2021, this Court denied the   
   defendants’ motion to dismiss. The parties have now filed cross-motions for   
   partial summary judgment,” Judge Koeltl notes.   
      
   The Trump defendants asked the Court to dismiss part of the complaint based   
   on their assertion that Grant lacked a valid copyright registration for the   
   sound recording of “Electric Avenue.” The details are convoluted, but the   
   bottom line straightforward; defendants’ motion to dismiss was denied.   
      
   The plaintiffs moved for summary judgment on the issue of liability. Oral   
   argument was heard on September 6 and in his order, Judge Koeltl reveals   
   that the plaintiffs’ motion is granted. The defendants are liable for   
   damages because their fair use defense comprehensively fails.   
   Fair Use Analysis   
      
   “In this case, the Video has a very low degree of ‘transformativeness,’ if   
   any at all. As this Court found in denying the defendants’ motion to   
   dismiss, the Video ‘is best described as a wholesale copying of music to   
   accompany a political campaign ad’,” Judge Koeltl notes, citing his opinion   
   from 2021.   
      
   “The defendants also argue that the Video ‘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’. Again, ‘the defendants’ argument misapprehends the focus   
   of the transformative use inquiry.'”   
      
   The inquiry does not focus exclusively on the character of the animation,   
   the Judge notes. Rather, “it focuses on the character of the animation’s   
   use of Grant’s song.”   
      
   The defendants claimed that their use of the work gave them “no commercial   
   advantage” but the Judge disagreed.   
      
   In this case, the defendants benefited commercially from using Electric   
   Avenue without paying a licensing fee. While there was no direct profit   
   motive, that was insufficient to overcome the lack of transformative use   
   and the first fair use factor favoring Grant.   
   A Fair Use Full House For Grant   
      
   Once again citing his opinion and order from 2021, the Judge notes that the   
   defendants conceded that Electric Avenue is a creative, published work,   
   leading to the second factor favoring Grant.   
      
   The third fair use factor considers the amount and substantiality of the   
   portion used in relation to the copyrighted work as a whole. This inquiry   
   was also present in the opinion from 2021; in 2024, nothing has changed and   
   still favors Grant.   
      
   The fourth factor asks “whether, if the challenged use becomes widespread,   
   it will adversely affect the potential market for the copyrighted work.” In   
   this matter the Judge writes that there is no public benefit as a result of   
   the defendants’ use of Electric Avenue; they could’ve used any song, even   
      
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