6:47am PT by Eriq Gardner
Trump Tries "Fair Use" Defense in Song Copyright Lawsuit
Donald Trump still thinks he can win this one. We're of course referring to the lawsuit that was filed against his presidential campaign for using the 1983 hit "Electric Avenue" in a campaign video. On Wednesday night, amid legal challenges around the nation focused on the results of voting, Trump also filed a dismissal motion in New York court with respect to the copyright case brought by Eddy Grant. The motion argues that Trump should escape the lawsuit on fair use grounds.
Unlike many past challenges to use of music by politicians, this controversy has nothing to do with what's played over the loudspeakers of a campaign rally. As such, Trump is unlikely to argue he had license to the song nor assert any fancy counterclaim premised on performance rights consent decrees.
Instead, Trump is actually trying a fairly straightforward defense even if other politicians have tried and failed here before.
His campaign argues that it was transformative to use the song over a cartoon version of Joe Biden driving an old-fashioned train car interspersed with his rival's speeches.
"The purpose of the Animation is not to disseminate the Song or to supplant sales of the original Song," states the motion.
The motion points to lyrics from "Electric Carnival": “[N]ow in the street, there is violence … And a lots of work to be done.”
"These lyrics, however, stand in stark juxtaposition to the comedic nature of the animated caricature of Former VP Biden, squatting and pumping a handcar with a sign that says, 'Your Hair Smells Terrific', and to the excerpt of the overlayed speech that references 'hairy legs' and kids playing with his leg hair. Obviously, Mr. Grant’s purpose of creating a meaningful song for the pop music market is completely different from the Animation creator’s purpose of using the song 'to denigrate ... Former Vice President Joseph Biden.'”
Trump shoots for a pretty liberal — yes, we'll use that word — reading of copyright fair use.
"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," continues the motion.
As for another fair use factor, the effect of the use upon the potential market, Trump's campaign ignores licensing and focuses just on sales.
To whit: "Here, finally, it is utterly implausible that fans of Mr. Grant’s music, or pop music listeners in general, would opt to acquire the Animation in preference to the Song, in order to watch the Animation and thereby to hear the warped snippet of the Song accompanied Former VP Biden’s voiceover. Therefore, the Animation does not affect — much less usurp — the market for the Song and does not offer a market substitute for the Song."
The Trump campaign is represented by Peruff Saunders, and with no signs of settling, musicians could be in line for a welcome ruling on copyright and politics.