Trump is trying to use “Fair Use” defense in Eddy Grant copyright lawsuit

Sean Furtado

Donald Trump used a lot of artists' music without their permission during his failed 2020 reelection campaign. One of them was Eddy Grant, whose classic 1982 single "Electric Avenue" was used in an animated Trump campaign video. Trump tweeted the campaign video -- which featured an animated version of Biden working an old-fashioned railroad handcar while the song and Biden soundbites play over it -- back in August, but then removed it following a complaint by Grant. The musician filed suit against the Trump campaign for copyright violation, telling CNN at the time, "the removal of the video does not diminish the damages that have been sustained by reason of the two copyright infringements at issue. The tweet was sent to millions of President Trump's Twitter account followers and then retweeted a significant amount of times."

According to The Hollywood Reporter, the campaign's attorneys filed a motion on Wednesday that the video made "fair use" of the song on satirical grounds. "Obviously, Mr. Grant’s purpose of creating a meaningful song for the pop music market is completely different from the Animation creator’s purpose of using the song 'to denigrate ... Former Vice President Joseph Biden'," the motion reads, "Here, a reasonable observer would perceive that the Animation uses the Song for a comedic, political purpose – a different and transformed purpose from that of the original Song."

"Fair Use" on satirical grounds is usually argued in the case of parody songs, a la Weird Al, and not the use of a song that's not actually being "transformed," but played in its original form, in a "satirical" video.

As Hollywood Reporter notes, the motion focuses on sales and not the licensing of the song: "Here, finally, it is utterly implausible that fans of Mr. Grant’s music, or pop music listeners in general, would opt to acquire the Animation in preference to the Song, in order to watch the Animation and thereby to hear the warped snippet of the Song accompanied Former VP Biden’s voiceover. Therefore, the Animation does not affect – much less usurp – the market for the Song and does not offer a market substitute for the Song."

We'll see how this one turns out.

This is a very different case than most of the complaints against our outgoing president, which are from Trump using songs over the PA at campaign rallies. Artists who asked Trump to stop using their music included Neil Young, The Village People, Phil Collins, and John Fogerty.