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Here’s What Happened:
In 1983, Eddy Grant composed and recorded the song “Electric Avenue”. Eddy licensed the work to Warner Music. A Warner Music affiliate registered the copyright of the “Electric Avenue” sound recording in a compilation titled “Eddy Grant: The Greatest Hits”. When the Warner license expired in 2006, the copyright registration reverted back to Eddy and his own licensing entities.
During Donald J. Trump’s 2020 presidential election campaign, a Trump supporter created a video showing a fast moving train sporting the words “Trump Pence [Keep America Great] 2020”. The video used “Electric Avenue” for its sound track. Trump’s campaign manager found the video on Twitter (now X) and Trump gave him permission to have the Trump campaign retweet it. The campaign didn’t ask for permission to use the song.
Eddy, through his counsel, demanded that the Trump campaign remove the video from Twitter. After being ignored, Eddy filed suit for copyright infringement.
Now, four years later and in the midst of another presidential election cycle, Eddy finally got a decision on his case.
Being unable to deny that they used "Electric Avenue" without permission, the Trump campaign asserted two defenses. First, the work hadn’t been registered prior to filing suit because the recording was part of a compilation. The court rejected that defense. The registration of a compilation is the registration of each component of the compilation.
Then, the campaign went to the old standby of fair use. The court rejected that defense too. The court found that all of the factors weighed against fair use.
· Factor 1: Purpose and character of the use. There was nothing transformative about the use of the song.
· Factor 2: The type of work. The work was creative and thus warranted protection against unauthorized uses.
· Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The song played for the majority of the animation and the defendants didn’t articulate any purpose for the copying.
· Factor 4: Adverse effect on the market for the work. The court agreed with Eddy that there was no public benefit to using his song as opposed to any other song. The court made a very crucial observation on this point. “The plaintiffs’ ability to license "Electric Avenue" in the market for licensed music for videos—political or otherwise—would be affected by widespread, uncompensated use.”
The court granted Eddy’s motion for summary judgment on liability. Next will be a hearing on damages.
WHY YOU SHOULD KNOW THIS: Copyright infringement occurs when the defendant copies and distributes a work without permission. By retweeting and posting the video on its own Twitter account, the 2020 Trump Campaign committed copyright infringement. This holds true even though the campaign didn’t create the video in the first place.
Cited Authority Grant v. Trump, No. 20-CV-7103 (JGK), 2024 WL 4179057 (S.D.N.Y. Sept. 13, 2024)