A New York judge has declined to dismiss a lawsuit filed against Donald Trump by singer-songwriter Eddy Grant, over the former president's use of the artist's hit song "Electric Avenue" in a campaign video last year.
Trump's attorneys had asked the judge to throw out Grant's lawsuit, arguing that the campaign's use of "Electric Avenue" in a Twitter video — "alongside out-of-context excerpts from Joe Biden's past speeches and interviews" — was covered by the "fair use" principle of U.S. copyright law, according to Complete Music Update.
Twitter subsequently removed the video in response to a complaint from Grant.
"Countless artists complained about Trump using their songs and recordings during his original presidential campaign and subsequent presidency, of course, though usually those complaints related to music being played at rallies and other political events. In that context, Trump wouldn't usually need specific permission to play any one track," Complete Music Update reports. "However, in Grant's case, 'Electric Avenue' was used in a Trump campaign video that was posted to Twitter. And such usage isn't covered by any blanket licenses issued by collecting societies. The campaign, therefore, needed a bespoke license, which it did not secure."
Trump's attorneys claimed that the campaign's use of "Electric Avenue' was covered under "fair use" because it was for a "transformative" purpose — a "comedic" and "satirical" video that "a reasonable observer would regard as criticism or commentary."
But state district Judge John G. Koeltl disagreed.
"The video's creator did not edit the song's lyrics, vocals or instrumentals at all, and the song is immediately recognizable when it begins playing around the fifteen-second mark of the video, notwithstanding that audio of President Biden's speech can be heard simultaneously," Koeltl wrote. "'Electric Avenue' is not edited at all and is instantly recognizable. The additional audio of President Biden's speech does nothing to obscure the song; and the song – which plays for over two thirds of the duration of the video – is a major component of the impression created by the animation, even though it appears that the video's creator could have chosen nearly any other music to serve the same entertaining purpose."
Complete Music Update notes that Trump's attorneys could still resurrect their "fair use" claim as Grant's lawsuit proceeds.
"However, it seems likely those arguments will still fail even with more evidence available and more rigorous discussion in court," the site reports. "After all, if the fair use defense was to prevail here, it would basically set a precedent that American politicians could pretty much use any music in any political videos without getting permission."
