By Gary Symons
Two things in the universe seem almost infinite; one being the number of stars in the universe, and the other being the number of lawsuits involving outgoing US President Donald Trump.
While most eyes are focused on the many lawsuits launched by Trump and his campaign team over the 2020 election, those in the licensing industry are on the lawsuit brought by singer songwriter Eddy Grant over Trump’s use of his song ‘Electric Avenue’ in a campaign ad.
This past week Trump’s lawyers filed a motion to dismiss the case, based on the argument that its use over an animated attack ad was “transformative,” intended to deliver a political message, and therefore qualifies as fair use.
The ad features the lyrics from Electric Avenue, “Now in the street there is violence/and a lot of work to be done,” a reference to the violent clashes between police and Black Lives Matter protesters in 2020. The lyrics and music are juxtaposed over an attack ad featuring an animated cartoon of Democratic candidate and now-President Elect Joe Biden.
“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,” the motion reads. “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.”
Grant, obviously, does not agree. The musician filed suit against Trump and the campaign after the video was posted to Twitter and viewed millions of times by Trump supporters. While Twitter removed the video for copyright infringement, Grant’s lawyer Brian Caplan told CNN that, “…the removal of the video does not diminish the damages that have been sustained by reason of the two copyright infringements at issue. The tweet was sent to millions of President Trump’s Twitter account followers and then retweeted a significant amount of times. Neither the President nor his reelection campaign team gave any defense to their wrongful conduct.”
That has now changed with the campaign’s Fair Use motion to dismiss, but such arguments have tended to fail in the past when faced with allegations of copyright infringement. One such case involved the musician Don Henley, formerly of The Eagles, who filed suit against Republican politician Charles DeVore over his use of ‘The Boys of Summer’ and ‘All She Wants to Do is Dance’.
One of the major complaints brought by Henley was the idea that he might approve of the use of his music in campaign ads, and might even be endorsing a particular political candidate. Henley’s lawyers submitted a survey which found that 48 per cent of respondents thought that Henley either “… endorsed the videos or authorized or approved the use of his music in the videos.”
In that case the plaintiffs were awarded a summary judgement against the DeVore campaign, but the Trump campaign is using very similar arguments to apply for dismissal of the Electric Avenue lawsuit, that being that the ads would not affect sales of Grant’s music.
“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 (that) accompanied Former VP Biden’s voiceover,” the motion from lawfirm Peruff Saunders states. “Therefore, the Animation does not affect — much less usurp — the market for the Song and does not offer a market substitute for the Song.”
Like Henley, Grant is complaining that the Trump campaign’s use of his music is hurting his reputation, and creates the false impression that he may support both Trump and the advertisement itself.
Another of Grant’s lawyers, Wallace Collins, had filed a cease and desist order immediately after the ad appeared on Twitter, writing, “As a result of your wrongful unauthorized Infringing Use in connection with your controversial political campaign, substantial damage and irreparable harm has occurred and will continue to occur to my client and his reputation as an artist when affiliated in any way with your campaign.”
The central issue, however, is not Grant’s fear of being affiliated with the campaign ad, but rather the way copyright law relates to music or other works of art that are used in advertising.
Grant is, after all, not the only musician to complain about the Trump campaign’s use of their music, but normally the complaint is related to music played during a political rally.
Including Grant, at least two dozen complaints have been filed against Trump’s use of their music for political purposes, including acts like Adele, Aerosmith (twice), The Beatles, Bruce Springsteen, Creedence Clearwater Revival, Elton John, Guns’n’Roses, Leonard Cohen, Linkin Park, Luciano Paverotti, Neil Young, Nickelback, Panic at the Disco, Pharell Williams, Phil Collins, Prince, Queen, REM, Rihanna, the Rolling Stones, Tom Petty, and, most famously of all, The Village People.
That latter band was horrified when their hit YMCA was featured in multiple rallies during which Trump danced to the LGBTQ anthem, in the words of talk show host Stephen Colbert “… like a man milking two cows at the same time.”
Dancing prowess aside, musicians and the labels that represent them are becoming increasingly aggravated by political campaigns using their music without permission. Thus far that has not translated into much action for songs used during campaign rallies, although there have been many legal threats and warnings.
In terms of copyright law, arguments have been made that music played at rallies may be covered by a blanket license from collecting organizations like BMI or ASCAP, just as someone might use an artist’s song on a radio station or at a wedding.
However, when a song or even a portion of a song is used in an advertisement, it is generally acknowledged under copyright law that a license agreement is required. With that in mind, Grant’s lawsuit may well become a leading case defining Fair Use for songs and other art works used in political campaigns, and particularly in political advertising.