Trump stumbles down Electric Avenue

Steven T. Lowe

On September 28, 2021, a U.S. District Court Judge for the Southern District of New York denied Former President Donald Trump’s motion to dismiss Eddy Grant’s copyright infringement action for the unauthorized use of Grant’s song, “Electric Avenue,” in an animated video for the Trump Campaign.

“Electric Avenue” was originally released in 1983. The song spent five weeks at number two on Billboard Magazine’s Top 100 Chart and was certified platinum by the Recording Industry Association of America. Grant assigned all of his rights and interests in the musical composition and sound recording that comprise “Electric Avenue” to Greenheart Antigua in 1983. On August 12, 2020, Trump’s campaign used the song in a social media video attacking Joe Biden on Twitter without a license or permission from Grant.

Trump argued the advertisement’s use of the song was “fair use” because it transformed the song for a “comedic, political purpose.” Fair use is the right to use a copyrighted work under certain conditions without the permission of the copyright owner. Courts consider four factors in making a fair use determination. Nevertheless, the Judge stated that Trump did not show how the animated video transformed the song in any way or how the song was integral to the video’s political message.

The Judge further stated that the “additional audio of President Biden’s speech does nothing to obscure the song; and the song — which plays for over two-thirds of the duration of the video — is a major component of the impression created by the animation, even though it appears that the video’s creator could have chosen nearly any other music to serve the same entertaining purpose.” Additionally, the Judge did not find the animated video to be a noncommercial use of the song because parties can still profit from such videos by gaining publicity and campaign donations.

Grant is represented by Brian D. Caplan and Robert W. Clarida of Reitler Kailas & Rosenblatt LLP.

Trump and his campaign are represented by Darren W. Saunders, Mark Peroff, Cassandra Tam and Jason Kasner of Peroff Saunders PC, and Kenneth A. Caruso of Mukasey Frenchman LLP.

The case is Grant et al. v. Trump et al., case number 1:20-cv-07103, in the U.S. District Court for the Southern District of New York.

* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright and intellectual property law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.