There have been plenty of songwriters and recording artists over the years objecting to Republican politicians using their music. Sometimes, that results in litigation, but almost never a court ruling, because litigation is slower than political winds. But Donald Trump isn’t like other politicians. He doesn’t like to settle. And so on Tuesday, a New York federal judge issued a decision that will cheer musicians.
The suit came from Eddy Grant over use of his 1983 earworm “Electric Avenue.” The song was used in an online ad during the last campaign that had a cartoon version of Joe Biden driving an old-fashioned train car interspersed with his rival’s speeches.
In response to Grant’s suit, Trump argued this was copyright fair use.
“The purpose of the Animation is not to disseminate the Song or to supplant sales of the original Song,” stated a motion to dismiss. “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.”
In his ruling today, U.S. District Court Judge John Koeltl provides a direct response to what he characterizes as “wholesale copying of music to accompany a political campaign ad.”
Trump’s argument “misapprehends the focus of the transformative use inquiry,” he 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.”
Grant then gets a big assist from a recent appellate decision over Andy Warhol art. Specifically, Koeltl picks up guidance that “where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use,’ is insufficient to render a work transformative.”
Trump doesn’t do well on the first and perhaps most important factor that informs whether use of copyrighted material is in bounds. He’s also behind on the other factors, as the judge sees Trump using a clearly creative work — and a lot of it too. There’s still some fussing over whether the campaign ad hurt the market for “Electric Avenue,” but the judge writes that Grant has met his burden in pleading harm.
The motion to dismiss fails. The parties can proceed to discovery. Here’s the full decision.