District court finds Trump and his 2020 election campaign liable for copyright infringement for tweeting campaign video featuring unauthorized use of 1983 song “Electric Avenue,” finding no support for Trump’s fair use defense.
Eddy Grant, the writer and performer of “Electric Avenue,” along with his affiliated entities, sued former President Donald Trump and his 2020 presidential election campaign vehicle, Donald J. Trump For President Inc., for copyright infringement arising out of Trump’s unauthorized use of the 1983 song in a 55-second campaign video that heavily featured the song. To the soundtrack of “Electric Avenue,” the video contained an animation of a fast-moving red train emblazoned with the words “Trump Pence [Keep America Great] 2020” quickly moving past a handcar piloted by Joe Biden, accompanied by excerpts of Biden’s speeches and interviews. Trump’s Director of Social Media, Daniel Scavino, testified that he saw the video on a Trump supporter’s social media page and, with Trump’s approval, reposted the video to Trump’s Twitter account. The video was viewed more than 13.7 million times. Through his counsel, Grant sent Trump and his campaign a cease-and-desist letter. With no action by the Trump campaign to remove the video from Twitter, Grant filed suit, bringing claims of copyright infringement on both his composition and sound recording of “Electric Avenue.”
Following the district court’s denial of Trump’s motion to dismiss the claims, both parties moved for partial summary judgment. In their motion, defendants argued that Grant’s claim for infringement of the “Electric Avenue” sound recording should be dismissed because plaintiffs did not have a valid copyright registration for that work. Plaintiffs moved for summary judgment as to defendants’ liability for copyright infringement of both the sound recording and the underlying musical composition.
The district court first addressed Trump’s motion. While there was no dispute that the Trump campaign used “Electric Avenue” without authorization, Trump’s argument was grounded in the Copyright Act’s requirement that a copyright must be registered before an infringement action may be instituted. Trump claimed that plaintiffs had failed to register the sound recording copyright for “Electric Avenue.” Grant had assigned his rights in the composition and the sound recording for “Electric Avenue” to his licensing entities in 1983, and the sound recording was then licensed to Warner Music UK Limited in 2001. The “Electric Avenue” sound recording was included in a compilation titled “Eddy Grant: The Greatest Hits,” which was registered with the Copyright Office by an affiliate of Warner Music in 2002, during the term of its license. When the license expired in 2006, the copyright registration reverted back to Grant and his entities.
The question before the court was whether the registration of the “Eddy Grant: The Greatest Hits” compilation, which contained the “Electric Avenue” sound recording, constituted registration of the “Electric Avenue” sound recording. The district court determined that it did, finding precedent in the Second Circuit that “the registration of a ‘collective’ or ‘derivative’ work covers registration of the constituent parts if the registrant has copyright ownership of the constituent parts.” The court rejected Trump’s arguments that the “minor mistakes” in the registration documents—such as the fact that the “authorship” field in the registration listed a “compilation” and not a sound recording—excluded registration of the “Electric Avenue” sound recording, noting the “lenient nature of the registration requirement.” The court further rejected defendants’ argument that “constituent parts must have been unpublished at the time of the registration of the collective or derivative work.” Thus, finding that plaintiffs had a valid copyright registration for the sound recording of “Electric Avenue,” the court denied defendants’ motion for summary judgment.
The court turned to plaintiffs’ summary judgment motion, which sought a finding of Trump’s liability on both infringement claims. The issue before the court was whether Trump and his campaign had a valid fair use defense for their unauthorized use of the “Electric Avenue” composition and the sound recording in the campaign video. In conducting its analysis, the court referenced the four fair use factors set forth in section 107 of the Copyright Act: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”
Turning to the first factor, the district court noted that “[t]he central question [the first factor] asks is whether the new work merely supersedes the objects of the original creation (supplanting the original), or instead adds something new, with a further purpose or different character,” citing the Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith. The district court determined that the Trump video has “a very low degree of ‘transformativeness,’ if any at all,” describing it as “a wholesale copying of music to accompany a political campaign ad.” The court noted that there was no editing of “Electric Avenue,” which was “immediately recognizable” and played throughout the majority of the video, and that the song “play[ed] no discernible role in communicating the video’s overarching political commentary.” As the first factor also considers whether the secondary use is of a commercial nature, the court noted that such commerciality is not limited to monetary gain but rather asks “whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” The court found that Trump benefited commercially from using “Electric Avenue” without paying a licensing fee for the use. Thus, the court determined that the first factor weighed against a finding of fair use.
The second fair use factor considers the nature of the copyrighted work, including “(1) whether it is expressive or creative or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) whether the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower.” Defendants conceded that “Electric Avenue” is a creative, expressive work that has been published. The second factor therefore weighed against a finding of fair use.
The third fair use factor looks to “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” with a focus on the quality and importance of the portion used in relation to the whole. The court cited its opinion on Trump’s failed motion to dismiss, finding that “[t]he song plays for the majority of the animation; the excerpt is of central importance to the original work; and defendants have not articulated any purpose for the copying.” Thus, the third factor also weighed against a finding of fair use.
The fourth factor asks whether, “if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work.” The court also noted that it must “balance the benefit the public will derive” if the use is deemed fair against the gain the copyright owner would obtain if fair use is denied. Here, the court found that “there is no public benefit as a result of defendants’ use of ‘Electric Avenue,’” agreeing with plaintiffs that Trump and his campaign “could have used any song, created a new song, or used no song at all, to convey the same political message in the Infringing Video.” The court also found that if there were widespread unauthorized uses of plaintiffs’ songs in promotional videos, whether political or not, others would be emboldened to use the music without paying for a license. Thus, even though plaintiffs had never licensed their song for a political purpose, the court held that the unauthorized use harmed the potential market for plaintiffs’ song, and the fourth factor therefore weighed against a finding of fair use.
With all four fair use factors favoring plaintiffs, the court held that Trump’s use of “Electric Avenue” in the video was not fair use. Because Trump and his campaign had not put forth any other defense to plaintiffs’ copyright infringement claims, the court granted plaintiffs’ motion for summary judgment as to defendants’ liability.
Summary prepared by Tal Dickstein and Kyle Petersen
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