With the 2020 United States presidential election campaign in full swing, then-President Donald Trump seized every opportunity to paint Democratic opponent Joe Biden in an unfavorable light.
Trump’s platform of choice was invariably Twitter, where in August 2020 he posted an animated video of a speedy train carrying his campaign logo ahead of Joe Biden on a railroad handcar, struggling to keep up. In the background played the 1982 hit ‘Electric Avenue’ by Eddy Grant.
The furious British singer-songwriter responded by filing a lawsuit in a New York court, arguing that since Trump had not obtained permission to use the song, its use was an act of blatant copyright infringement.
Trump’s Attempts to Have Lawsuit Dismissed
In a motion to dismiss, Trump’s lawyers argued that use of the song was allowed under the doctrine of fair use, claiming that Grant created the work for the purposes of ‘musical entertainment’ and Trump used the work for ‘political commentary’. As such, the animation had a “fundamentally different and new purpose” and character from that of the song, meaning that any use was transformative.
Trump’s team further argued that the quantity and quality of use of the song in the animation was de minimus since only 17.5% of the track was used. The motion further argued that since no licensing payments were generated, the animation posed “absolutely no threat” to Grant’s licensing opportunities or use of the song in derivative markets.
Purpose and Character of the Use
In an opinion and order handed down Tuesday by U.S. District Judge John Koeltl, it is revealed that the Court reviewed the animation and finds the arguments of Trump’s legal team largely unconvincing. First up, the purpose and character of the use.
“The defendants argue that the video’s use of Electric Avenue was transformative as a matter of law because the video and the song serve different purposes. But the defendants’ argument misapprehends the focus of the transformative use inquiry,” Judge Koeltl writes.
“While it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation’s use of Grant’s song.”
In short, the animation’s political purpose does not automatically render the use of any non-political work transformative under fair use. Furthermore, the Judge notes that the best description of the use of Grant’s song is “wholesale copying” to support a political ad campaign and there was no attempt to modify the song or comment on the song or its author.
“Moreover, 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 Judge adds, noting that the defendants have already admitted that the animation is satire, not a parody of Grant or the song, and have offered no justification for their “extensive borrowing”.
The disconnect is so great, the Judge adds, that the animation could have used almost any other song to serve its entertainment goals.
“The fair-use privilege under § 107 is not designed to protect lazy appropriators. Accordingly, the defendants cannot show that the video’s use of Electric Avenue was transformative as a matter of law,” he adds.
Judge Koeltl also casts doubt on the claim that any use of the song was non-commercial, noting that the “crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”
Noting that there is a well-established market for music licensing, the Judge writes that the defendants chose to gain an advantage by using Grant’s song without paying a licensing fee, meaning that the use was indeed commercial, despite the use being political.
“Because the use was not transformative and appears at this stage to have been commercial, the first fair use factor favors the plaintiffs,” he concludes.
Nature of the Work, Amount of Use
Addressing the second fair use factor, where the Court is required to consider the nature of the copyrighted work, Judge Koeltl says that it’s clear that Electric Avenue is a creative work and therefore “closer to the core of intended copyright protection” and there is no dispute that the track is published and publicly available. When balancing both aspects, the nature of the song favors the plaintiffs.
In respect of the third fair use factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole), the Judge notes that the song plays for the majority of the animation, the excerpt used is of central importance to the original song, and the defendants have not explained any purpose for the copying. As a result, this weighs in favor of Grant.
Effect of the Use on the Market for the Original
The final fair use factor asks courts to consider the effect of the use on the potential market for the work that was copied, which requires the balancing of the benefit to the public if the use is permitted and effect on the copyright holder if the use is denied.
Judge Koeltl concedes that the animation is no substitute for the song itself but acknowledges that the use of Electric Avenue may threaten Grant’s licensing markets.
“It is plain that widespread, uncompensated use of Grant’s music in promotional videos – political or otherwise – would embolden would-be infringers and undermine Grant’s ability to obtain compensation in exchange for licensing his music,” he writes.
Trump’s team argued that Grant offered no evidence that he intends to enter the market for licensing the music to promotional videos but according to the Judge, Grant bears no such burden – the plaintiffs do.
“It is the defendants who bear the ultimate burden of showing a lack of market harm, and they cannot do so based simply on the allegations in the Complaint,” his opinion reads.
Turning to the potential benefits to the public of allowing copying under fair use, the Judge notes that ridiculing and lampooning public figures is a rich part of the United States’ First Amendment tradition. However, denying Trump will not chill political satire, he simply needed to stay within the law.
“Creators of satirical videos like the one at issue here must simply conform any use of copyrighted music with copyright law by, for example: paying for a license; obtaining the copyright owner’s permission; or ‘transforming’ the chosen song by altering it with ‘new expression, meaning, or message’. The creator of the video here did none of that,” he concludes.
In summary, the Judge finds that each of the fair use factors weighs in favor of Grant.
“The creator of the video here made a wholesale copy of a substantial portion of Grant’s music in order to make the animation more entertaining. The video did not parody the music or transform it in any way. The video’s overarching political purpose does not automatically make this use transformative, and the other fair use factors also favor the plaintiffs at this stage.”
As a result, Judge Koeltl denies Trump’s motion to dismiss (pdf).