November 16, 2020 Musicology No Comments

He’ll say he won, but once and future reality TV personality, Donald Trump, will eventually lose or more likely settle his case against Eddy Grant. It’s different from the Neil Young thing.

According to the complaint, the Trump Campaign placed “Electric Avenue,” (as in ‘We gonna rock down to…’) in an ad “deriding the Democratic Party’s 2020 nominee for President, Former Vice President Joseph Biden, which infringing video was tweeted by Mr. Trump on his personal Twitter account to his more than 85 million followers on August 12, 2020. 

Oh, no.

The Trump Campaign didn’t get a sync license.

This is entirely different by the way from all the rock stars, whose music is so often vexingly opposed to the GOP platform, who produce cease and desists and cry foul because the GOP plays their music at rallies. They’re mostly out of luck. The venues all secure blanket licenses to whole catalogs of music and those licenses covers usage by whatever act rolls into town. Those rock stars hate the association most of the time, but “Born In The USA” and “Fortunate Son” are gonna keep on getting played.

Trump lawyers filed a motion to dismiss this case, and they predictably went with really the only thing they could, a “fair use” defense. The Fair Use doctrine allows for certain unlicensed uses, but it’s no get out of jail free card. Fair use is case by case, subject to vagaries.

It has some basic tenets though.

Some examples: It helps if you’re weren’t in it for personal gain so much as public good. Also it helps if you used an insignificantly small part of the protected work. And if the original work wasn’t very artsy, like a song, but something less creative. Or if you’ve created from that song a new original piece of art that could be described as transformative of the original work. (The fair use doctrine and copyright law in general seek balance in encouraging creativity even while protecting rights holders.) And it’s nice if you didn’t do anything to harm the original rights holder — by, say, associating their work with something with which they’d not want to be associated. It really helps if you’re making an editorial statement, an observation about the original work, like a parody.

Good God.

But no, this use can’t tick any of those boxes. The Trump defense has filed a motion to dismiss and tried to check them. (By the way, the motion to my non-lawyer eyes looks really well put together; it’s just a losing battle.) They’ve effectively argued that since Eddy Grant’s work wasn’t a political ad — a new juxtaposition — it’s, therefore, a transformative use. But, that’s like any other commercial sync that may ever have used “Electric Avenue,” to sell cars or neon signs or anything. None of those are a direct association to the 1981 Brixton Riot that Grant wrote the song about. All of those require a license.

Really the rest of the boxes don’t matter. It used more than enough of the song to know it was “Electric Avenue;” for a commercial purpose (Don’t even.). It’s not an adaptation, just a needle drop of the recording. The point wasn’t to use points about Joe Biden to criticize the song but the other way around.

Look forward to checking the box in the loss column though.

Written by Brian McBrearty