District court denies motion by Donald Trump and his campaign to dismiss copyright infringement suit brought by singer Eddy Grant, finding Trump’s use of Grant’s song “Electric Avenue” in campaign ad does not constitute transformative fair use.
During the 2020 presidential election, former President Donald Trump posted an animated campaign ad on his personal Twitter account attacking then-candidate Joe Biden. The ad, which is 55 seconds long, contained a 40-second snippet of the song “Electric Avenue” by Eddy Grant. The day after the ad was posted, Grant sent Trump and his campaign a cease and desist letter regarding the unauthorized use of the song. Grant later sued Trump and his campaign for copyright infringement, and defendants moved to dismiss for failure to state a claim, arguing that the ad’s use of the song constituted fair use. The district court denied the motion to dismiss, finding that all four fair use factors weighed in favor of Grant.
Regarding the first factor, the purpose and character of the use, including whether it was for commercial purposes or educational purposes, the court looked at whether the ad’s use of “Electric Avenue” was transformative and whether it was for a commercial purpose. Defendants argued that the ad’s use of “Electric Avenue” was transformative because the video and the song serve different purposes, but the district court disagreed, holding that the ad’s political purpose does not automatically render the appropriation of any nonpolitical work transformative. Moreover, the court found that the ad adopted the song wholesale, without editing any of the lyrics, vocals or instruments, making it instantly recognizable.
Defendants also argued that political uses are by definition not commercial, but the court pointed to several cases establishing that political campaign videos are considered commercial in nature. Because defendants stood to gain publicity and donations from the ad, the court found that they could have profited from using the song without permission, particularly because the song was not integral to the ad’s political message.
On the second factor, the nature of the copyrighted work—whether it is “expressive or creative or more factual” and whether it is published or unpublished—the court found “Electric Avenue” to be a creative work and therefore “closer to the core of intended copyright protection.” As to the second consideration, the court noted that while the scope of fair use involving unpublished works is narrower than for published works, the inverse—that the scope of fair use involving published works is broader—is not necessarily true. Because the first consideration of this factor favored plaintiff and the second consideration was neutral, this factor overall weighed against a finding of fair use.
Third, the district court analyzed the amount and substantiality of the copied portion of the song in relation to the original work as a whole. The court held definitively that this factor weighed in favor of Grant. Not only did the song play for the majority of the ad without any editing, but the portion of the song featured in the ad is of central importance to the original work.
Finally, the fourth fair use factor asks whether the secondary work could adversely affect the potential market and value of the copyrighted work. This analysis does not focus on whether the secondary work would damage the market for the first but rather on whether it would usurp the market for the first by offering a competing substitute. While the court acknowledged that the 55-second ad is not a satisfactory substitute for the song, it focused its inquiry on plaintiff’s derivative licensing market. Here, the court found, the ad’s unauthorized use of “Electric Avenue” would embolden other infringers and undermine plaintiff’s ability to obtain compensation from licensing his music.
The fourth factor also considers the public benefits that copying will likely produce. The court found that requiring creators of political videos to obtain permission and pay licensing fees to use songs would not chill legitimate political speech. Thus, the fourth factor weighed against the fair use defense as well. Because each of the four fair use factors weighed in favor of plaintiff, defendants failed to demonstrate fair use as a matter of law and their motion to dismiss was denied.
Summary prepared by Tal Dickstein and Marwa Abdelaziz