Here’s a phrase I have to use but hate doing so: let’s go back to the 2020 presidential campaign. During what was essentially a multi-year advertisement for just how absolutely petty, stupid, and disingenuous a political system could possibly be, the 2020 American presidential election also featured a video sent out by the Trump campaign on social media that resulted in a copyright infringement lawsuit. You can see below a news clip that features the video, which is an admittedly fairly funny poke at his then rival, Joe Biden, but which also uses a healthy chunk of the Eddy Grant song Electric Avenue within it.
The Trump campaign used the music without permission. That appears to have pissed off Eddy Grant, who filed a copyright infringement lawsuit against the Trump campaign as a result.
Now, it’s important to point out that this is unlike many other infringement claims we’ve seen in the past and in the present from bands and musical artists unhappy about Trump using their music at campaign rallies and events. As we’ve pointed out before, those uses are often covered by licenses that the venues themselves have to play the music. Again, that’s not always the case, and in fact some of those licenses give artists an opt-out for specific uses by campaigns, but that’s not the norm.
In this case, however, there is no defending this through venue licenses. The song wasn’t played in a venue at all. It was played in a campaign video tweeted out by the campaign. As a result, the Trump campaign’s defense was instead fair use. And, as I detailed in my original post above, the fair use defense in this case is fairly laughable.
The judge overseeing the case apparently agrees, having found for Eddy Grant on summary judgement. The court went through the four factors test for fair use and found that every one of them was in favor of Grant and against fair use. The use of the song could encourage other political campaigns to make use of Grant’s work unlicensed, impeding his ability to market his song in that way. The song played for the majority of the video, making it an important factor in the overall video production. The song is obviously a creative work. And on the topic of transformation, well:
The court first found that Trump’s use did not “transform” Grant’s original work. In its words, “the video is best described as a wholesale copying of music to accompany a political campaign ad,” . . . “[T]he video’s creator did not edit the song’s lyrics, vocals or instrumentals at all.”
Fair use as a defense here was always going to be a longshot. And while I don’t make a habit of agreeing with creative artists in stories on Techdirt when it comes to infringement claims, this one is fairly straight forward. Trump made a campaign video, used an artist’s song for it, and didn’t bother to license it or get permission.
Now because this is 2024, I’m quite sure the judge will be accused of being “woke”, or a “communist”, or maybe a feline-consuming person of some national origin or another. Explain it away however you like; Donald Trump’s campaign committed copyright infringement, full stop.
Trump Loses Copyright Suit Over ‘Electric Avenue’ 2020 Campaign Video In Summary Judgement
More Law-Related Stories From Techdirt:
Elon Musk’s ExTwitter Regularly Caves To Censorship Demands; Way More Than Old Twitter
Ex-Congressmen Pen The Most Ignorant, Incorrect, Confused, And Dangerous Attack On Section 230 I’ve Ever Seen
Court Shuts Down Tennessee’s Attempt To Ban People From Talking About Abortion Options
