A federal judge in New York sounded skeptical on Friday that Donald Trump was not legally liable for using Eddy Grant‘s 1983 hit song, “Electric Avenue,” in a 2020 campaign video without the artist’s permission.
The judge, John G. Koeltl, did not decide whether Trump violated Grant’s copyright when he posted an animated clip on Twitter mocking his opponent, Joe Biden, to the strains of “Electric Avenue.” But in a 90-minute court hearing in downtown Manhattan, Koeltl grilled Trump’s lawyer, Jesse R. Binnall, at length and interrupted often as Binnall tried to make his case.
Grant’s lawyer, Robert W. Clarida, got a shorter and lighter interrogation by comparison. But the judge also questioned whether all of Grant’s claims against the former president and current Republican nominee are valid.
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The hearing came three days after a federal judge in Atlanta struck the classic R&B song “Hold On, I’m Coming” from Donald Trump’s 2024 campaign playlist for the time being while a similar case proceeds.
Both parties in New York were asking Koeltl to make summary judgments to either limit what a jury would be allowed to decide if the four-year-old copyright case ever goes to trial or, as Trump is asking, to conclude that Grant had no grounds to sue.
Koeltl said at the end of the hearing that he would take the dueling arguments “under advisement” but offered no timeline for a ruling.
The hearing was just one instance of Trump’s legal entanglements playing out in three different downtown Manhattan courthouses on Friday. The judge in his New York hush-money case postponed Trump’s sentencing until after the election — a win for the convicted former president — and Trump himself appeared in another courtroom to watch as his lawyers asked for a new trial in writer E. Jean Carroll’s successful federal sexual lawsuit against him.
Neither Trump nor Grant attended the hearing over the use of “Electric Avenue,” and the courtroom was nearly empty of spectators on Friday as Koeltl and the lawyers discussed the innards of music licensing agreements and U.S. copyright law.
Grant sued then-President Trump in 2020 after the video with “Electric Avenue” appeared on Twitter, garnering millions of views and almost 100,000 retweets before Trump agreed to take it down.
In the computer-generated clip, a Trump-branded freight train rumbles across the screen, trailed by Joe Biden on a slow-moving handcar. “Electric Avenue” kicks in, with its thumping beat, one-two guitar punch and Grant’s galvanizing shout of “Oi!” The track plays for about 40 seconds alongside audio snippets from a rambling speech that Biden delivered in 2017 at a public pool renaming ceremony.
Grant, known for his socially conscious music and lyrics, said in a statement in 2020 that the use of his song to amplify “derogatory political rhetoric” was “wicked” and a source of “considerable emotional distress.” Grant is seeking $300,000 in damages, down from the $100 million he originally said Trump might owe him for copyright infringement.
The former president’s lawyers have argued that placing “Electric Avenue” in a whimsical campaign cartoon constituted fair use under U.S. copyright law as an “expressive,” and “transformative” non-commercial form of political commentary that enjoys First Amendment protection. There was no link to a campaign donation site in the video or the tweet, they noted.
They also said Grant didn’t hold a proper copyright to the song when he filed his lawsuit.
Grant has since registered “Electric Avenue” with the U.S. Copyright Office, a step he took last month. But on Friday his lawyer, Clarida, said Grant didn’t need to do that because the copyright for a 2002 greatest-hits album that includes “Electric Avenue” afforded the album’s individual tracks the same protection. Grant registered “Electric Avenue” separately, Clarida said, in order to be “cautious,” using a “belt and suspenders” analogy.
Koeltl, while conceding that intellectual property law is not his specialty, appeared to suggest that any legal claims leveled by Grant using the brand new copyright — including a claim to collect lawyer’s fees from the other side — might not fly.
The judge sounded more open to the argument that copyrighting a whole album shields every song on the record from unlicensed use, based on his reading of previous court rulings. At one point Trump lawyer Binnall said that Grant was improperly “bootstrapping” a copyright claim for “Electric Avenue” from the copyright for the greatest-hits album.
“I don’t see the cases out there that say you can’t do this,” Koeltl said flatly.
Binnall cited Bob Dylan’s Basement Tapes recordings, Taylor Swift’s re-recorded albums, and an opinion from U.S. Supreme Court Justice Neil Gorsuch to buttress his arguments. He said that deploying “Electric Avenue” in a campaign video was “purely political in nature and for a non-profit purpose,” and that Trump’s use of the song hasn’t harmed Grant’s ability to license the track for other purposes.
Koeltl didn’t question the fair-use argument as aggressively as he did the claim of a nonexistent copyright. But Grant’s lawyer scoffed at the suggestion that Trump’s deployment of the song was “transformative” in a way that embodied fair use.
“The defendants could have used any song, or no song at all, to convey their political message,” he said.
The judge’s decision will play a significant factor in whether Grant v. Trump ever goes to trial. If so, a jury would hear the whole dispute, complete with witness testimony and exhibits, or just be asked to decide on monetary damages.
The case has rolled along at a handcar pace through four years’ worth of filings, motions, hearings, rulings and depositions of both Grant and Trump. In one of the few visible portions of a mostly redacted transcript of Trump’s deposition in 2022, he argued that Grant should be suing the maker of the video instead of him.
Trump’s lawyers have gotten various case documents sealed or redacted by arguing they include references to privileged 2020 campaign communications that, if released, could unfairly affect their client’s 2024 bid.
Grant’s lawyers want all the case paperwork unsealed. In his own, un-redacted deposition, Grant explained to a Trump attorney that the song is “a protest against social conditions.”
Trump’s 2024 campaign has incurred the wrath of several musicians, or their estates, objecting to their songs being used for Trump campaign events and videos.
The Trump campaign playlist has undergone some shuffling as the complaints and threats of litigation have piled up. In addition to the estate of Isaac Hayes, which brought the litigation over “Hold On, I’m Coming,” the Foo Fighters, ABBA, Celine Dion, Jack White, Johnny Marr of The Smiths and the estate of Sinead O’Connor have all publicly criticized Trump, sometimes harshly, after learning that their songs had become part of the candidate’s pitch to voters this year.
White called the campaign “fascists” last month after a Trump aide posted a short clip of the candidate boarding a plane set to “Seven Nation Army,” an arena-rock staple by White’s former duo, White Stripes. “Law suit coming from my lawyers about this (to add to your 5 thousand others.),” White wrote on Instagram.
The list of objectors extends back to Trump’s first campaign in 2016, when Adele, Aerosmith, the Rolling Stones and Neil Young all demanded he stop using their songs.
The post Attorneys For Donald Trump And Eddy Grant Wrangle In Court Hearing Over Use Of ‘Electric Avenue’ In 2020 Campaign Video appeared first on Deadline.
