Trump Doesn’t Deserve Copyright Win Over Eddie Grant But Still Might Get One

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One of the most depressing copyright lawsuits in recent memory celebrated its third birthday this month. How much has been spent by musician Eddy Grant and defendant Donald Trump over 40 seconds of unlicensed music is unclear, but it's likely to be an obscene amount better spent on almost anything else. The chilling effect on fair use can't be measured in money.

Donald TrumpFormer President Trump is one of the most interesting characters to ever appear on the American political landscape.

Trump’s ability to attract and generate controversy will go down in history, as will his numerous appearances in copyright infringement lawsuits.

Musician Eddy Grant filed a complaint against Trump in 2020 and three years later there’s little positivity to report for anyone involved.

Ignorance and Emotion Fuel Fire

The background to the lawsuit can be summarized as follows: during the presidential election campaign, someone affiliated with Trump and his campaign posted this animation on Twitter depicting a struggling Joe Biden.

The Trump campaign’s decision to include the 1982 hit ‘Electric Avenue’ as background music infuriated Eddy Grant, the British singer-songwriter behind the track. While his song being used without permission provided Grant with a legal avenue for retaliation, court filings made it clear that Grant was deeply offended that his music was being used to promote Trump’s campaign.

A confident Trump recently claimed he could end the war in Ukraine in 24 hours. That sits in stark contrast to the record in this case which currently consists of 108 filings spanning over 36 months.

Three Years of Toxic Waste

While Grant is a principled man, he doesn’t come off as unreasonable. A short phone call from Trump, freshly enlightened after 10 minutes on Wikipedia learning about the Brixton Riots, what caused them, and why the use of Electric Avenue was never meant to offend, couldn’t have hurt. Bridges can always be built towards common ground; the parties’ shared appreciation of Chuck Berry, for example, or how Grant survived a heart attack in 1971 and may be willing to share some tips.

Instead, Trump rejected Grant’s offer to settle the case. In a motion to dismiss, the soon-to-be most powerful man in the world, rich beyond most people’s imaginations, told Grant he would get nothing for his involuntary contribution to the presidential campaign. Because Grant had created the track for entertainment purposes and Trump had used it for political commentary, that was a “fundamentally different and new purpose” and covered by the doctrine of fair use.

Use Was Not Fair

In October 2021, U.S. District Judge John Koeltl said each of the fair use factors weighed in favor of Grant. The Trump campaign’s use of Electric Avenue was little more than “wholesale copying” and it had no license or permission in place to render that legal.

However, in a move that validated calls for justice and social equality found in many of Grant’s songs, Trump’s legal team reminded the musician that some people remain more equal than others.

“Plaintiffs’ claims against Donald J. Trump are barred, either in whole or in part, by Presidential absolute immunity.”

What was said during the subsequent deposition of Donald Trump is not part of the public record but the fact that a deposition took place at all is both remarkable and by now, fittingly depressing.

Grant’s Motion for Summary Judgment

On September 15, 2023, the plaintiffs and defendants filed motions for summary judgment at a Manhattan federal court in an effort to avoid the case going to trial. Grant’s motion states that despite the earlier rejection of a fair use defense, Trump’s team remain undeterred.

“Defendants will rely on the affirmative defense of fair use, which the Court rejected at the pleading stage. Discovery has revealed unequivocally that Defendants’ use of the Works was not transformative and does not comport with any theory of the fair use doctrine,” the motion reads.

“The defense, which Defendants have the burden of proving, should be rejected again as a matter of law and Plaintiffs’ motion that Defendants committed copyright infringement should be granted in its entirety.”

For reasons that are not immediately obvious, large sections of the motion are redacted, especially those relating to the deposition of Dan Scavino, Trump’s social media advisor.

grant v trump - dep

In summary, Grant believes he’s on solid ground and $300,000 in potential damages can’t be nullified by a defense of fair use.

Trump’s Motion for Partial Summary Judgment

The motion from the defense opens with the plaintiff’s assertion that the animation in question, provided to the Trump team by a third party, infringed two copyrights; a sound recording and composition in the Electric Avenue backing music. But then the following:

“There can be no material dispute, however, that Plaintiffs only plead a copyright registration covering the composition (i.e., the written music and lyrics) of Electric Avenue, registered at around the time of its publication in 1983,” the motion reads.

“Plaintiffs nevertheless claim that they own a valid copyright registration covering the sound recording (i.e., the fixation of a series of musical and spoken sounds to a ‘phonorecord’) of Electric Avenue by virtue a copyright registration for a ‘greatest hits’ album (which they described to the Copyright Office as a ‘compilation’) that contains the song Electric Avenue.”

To put things mildly, that isn’t ideal for Grant. As the plaintiffs explain, the Copyright Office’s position on compilations is that registrations do not cover their constituent parts, unless they were unpublished at the time of registration.

“Because Electric Avenue was indisputably published long before the registration that Plaintiffs assert covers its sound recording, Plaintiffs failed to plead and produce a valid copyright registration for the sound recording of Electric Avenue.

“Therefore, their claim for infringement of the Electric Avenue sound recording (Count II of their Complaint) must be summarily dismissed, as it is axiomatic that Plaintiff own and plead a valid copyright registration covering the alleged infringed work is a prerequisite for maintenance of a federal copyright infringement action,” the motion adds.

With no valid copyright registration covering the sound recording, Count II of the complaint must be dismissed, Trump’s legal team conclude.

Lawsuit Hurts All

On the basis that fair use is a legal defense, not immunity from legal action, the Trump team’s actions represent yet another chilling effect on those who rely on fair use to conduct research, teach, learn or report on current events.

The message here is that if a third party is wealthy and stubborn, a fair use defense that has no realistic chance of success can be dragged out for years until the rightsholder runs out of money, or indeed the will to carry on.

In this case, a fundamental administrative issue could mean that the court has no other choice than to side with those who benefited from a copyright work, refused to pay for that right, and then prevailed through sheer financial staying power and pure luck. That fair use was the vehicle adds insult to injury.


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