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Eddy Grant on Electric Avenue Sued Trump Whose Fair Use Motion To Dismiss Is Denied

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Sept 28 – For unauthorized use in an anti-Biden tweet of Eddy Grant's song "Electric Avenue," Donald Trump and his then-campaign have been sued for copyright violation.  

On December 4, 2020 U.S. District Court for the Southern District of New York Judge John G. Koeltl held a pre-motion conference. Inner City Press covered and live tweeted it, thread here and below, followed by a bit of copyright / Digital Millennium Copyright Act analysis.

  On December 28 Grant opposed Trump's motion to dismiss, citing among other things Don Henley's case against a California Senatorial candidate who used his song to "denigrate his rival Barbara Boxer, as well as Nancy Pelosi, Barack Obama and 'cap and trade and global warming policies.'" Unlike Neil Young, Grant is pressing forward.

 And on September 28, Judge Koeltl denied the defendant's motion to dismiss, stating that "while it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation's use of Grant's song." Full Order on Patreon here. Watch this site.

From Inner City Press' December 4 thread:

The Trump campaign lawyer says he wants to move to dismiss without discovery, calls it political, non commercial use. 

Judge Koeltl asks Grant's lawyer: Do you want to amend your compalint?  Grant's lawyer: No.  Showdown.

 Judge Koeltlt: OK, let's set the date for response to the motion to dismiss, and for the reply. How about Dec 21 for the response?

 Lawyer asks for Dec 28.  Judge Koeltl says, You're making it hard for yourself, but sure. Ken Caruso for Trump and campaign to reply Jan 11.

  [While monitoring UN noon briefing Inner City Press is banned from by corrupt SG  @AntonioGuterres , here's from Eddy Grant's complaint:]

"On August 12, 2020 at or about 9:35 p.m., Mr. Trump published a tweet containing a 55 second video (the “Infringing Video”)...

 The Infringing Video appears to be an endorsement of Mr. Trump’s 2020 Presidential re-election campaign [&]  is also clearly an attempt to denigrate the Democratic Party’s2020 presidential nominee, Former Vice President Joseph Biden.
 ... contains a visual depiction of a high-speed red train bearing the words “Trump Pence KAG 2020” in stark contrast to a slow moving handcar bearing the words “Biden President: Your Hair Smells Terrific” [re-casting an old ad]

 As of the date of the filing of this Complaint, neither the Infringing Video nor the Tweet containing the Infringing Video has been removed from Twitter. Defendants have failed &/or refused to comply with Plaintiffs’ demands set forth in the Aug13, 2020 letter." 

 While Inner City Press will cover the opposition and reply, and ultimate decision, there have been other fair use cases against the Trump campaign.

In this case, the defense argument is that "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."

Nickelback took a different approaching, using the Digital Millennium Copyright Act to get Twitter to take down a tweet that included Joe Biden and his son, Hunter, saying “LOOK AT THIS PHOTOGRAPH!” along with a video that included part of Nickelback’s music video for the 2005 song “Photograph.”  

 Inner City Press' experience with misuse of the DMCA is a UN Reuters reporter, now Human Rights Watch UN rep Louis Charbonneau, getting Google to remove from Search a leaked copy of his email lobbying Antonio Guterres' spokesman Stephane Dujarric to oust Inner City Press from the UN - on the argument that a leaked email is copyrighted, a truly negative precedent for investigative journalism.

We'll have more on this.

This case is Grant et al. v. Trump et al., 20-cv-7103 (Koeltl)


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