Trump Says He Fairly Used ‘Electric Avenue’ in Biden Attack (1)

Nov. 12, 2020, 4:18 PMUpdated: Nov. 12, 2020, 6:39 PM

President Trump and Donald J. Trump for President Inc. responded to musician Eddy Grant’s allegations in Manhattan federal court that they used his 1983 hit “Electric Avenue” in a video attack ad against Joe Biden without permission, arguing they’re not liable for copyright infringement because they made fair use of the song.

The filing appears to the be the Trump campaign’s first response in court to complaints about its alleged use of popular songs without authorization. Several other musicians have objected to Trump’s use of their music at campaign events, and Warner Music Group got Twitter to take down a Trump tweet with a meme featuring Nickelback’s song “Photograph” last year.

Rock legend Neil Young sued in August over the use of two of his songs at Trump campaign events, in one of the first lawsuits against the Trump campaign over this issue. The Trump campaign hasn’t yet responded to Young’s suit, and has until Nov. 23 to file an answer to the complaint.

Copyright lawsuits over political campaigns’ music choices are rare.

Grant told the U.S. District Court for the Southern District of New York in his September complaint that President Trump tweeted a 55-second animated video showing a high-speed Trump-branded train in “stark contrast” to a slow-moving handcar powered by Biden as “Electric Avenue” played in the background. Grant said he never licensed the song to Trump or his campaign, and that they didn’t comply with a cease-and-desist letter.

Trump’s campaign moved to dismiss Grant’s complaint on Wednesday. They argued the video was protected by the fair use doctrine because it used “Electric Avenue” in a transformative way.

“The Animation took a small portion of the Song, and then modified that portion from its original form (a pop song) and incorporated that modified portion into a new, creative work (a comedic video about Former VP Biden) of a different character, unrelated to the original,” the campaign said. The video “significantly altered” the song by overlaying it with excerpts of Biden’s speeches, used the song to mock Biden, and only featured 40 seconds of it.

“As such, the use is not simply a remake or a recreation of the Song and does not serve the same intrinsic entertainment value that is protected by Plaintiffs’ copyrights,” the campaign said. Instead, it said a reasonable observer would consider the video to be non-commercial political criticism or commentary.

The campaign argues that other factors also favor a finding of fair use, including that it only used a small portion of “Electric Avenue” and that its use won’t affect the potential market for the song.

Judge John G. Koeltl is presiding.

Peroff Saunders PC and Mukasey Frenchman & Sklaroff LLP represents the Trump campaign. Reitler Kailas & Rosenblatt LLC represents Grant.

The case is Grant v. Trump, S.D.N.Y., No. 1:20-cv-07103, motion to dismiss filed 11/11/20.

(Additional context added in second and third graphs)

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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