Grant v. Trump

Background

Eddy Grant, Greenheart Music Limited, a United Kingdom company, and Greenheart Music Limited, an Antigua and Barbuda company, sued Donald J. Trump and Donald J. Trump For President, Inc. over the unauthorized use of “Electric Avenue” in a 55-second animated video posted to Trump’s personal Twitter account during the 2020 presidential campaign. The video used the sound recording, which embodies the musical composition, beginning about 15 seconds into the video and continuing through its duration.

Grant wrote, recorded, and produced “Electric Avenue.” In 1983, he assigned his rights in the composition and sound recording to Greenheart Antigua. The composition was registered in the United States Copyright Office in 1983. Under a 2001 agreement, Greenheart UK licensed rights in the recording to Warner Music UK Limited, including the right to exploit and publicly perform the recording in the compilation “Eddy Grant: The Greatest Hits.” In 2002, London Records, an affiliate of Warner Music, registered that compilation. The agreement expired no later than September 20, 2006, after which the recording’s copyright ownership reverted to the plaintiffs.

The plaintiffs asserted copyright-infringement claims concerning the composition (Count I) and the sound recording (Count II). The parties filed cross-motions for partial summary judgment. The defendants sought summary judgment dismissing Count II, arguing that the plaintiffs lacked a valid registration for the sound recording. The plaintiffs sought summary judgment on liability, arguing that the defendants’ use was not protected by fair use.

Sound-recording registration

The court denied the defendants’ motion for partial summary judgment dismissing Count II. It explained that a copyright-infringement plaintiff must show ownership of a valid copyright and unauthorized copying, and that the Copyright Act generally requires registration before a civil infringement action involving a United States work can be filed.

The court held that the 2002 registration for “Eddy Grant: The Greatest Hits” also registered the “Electric Avenue” sound recording contained in that compilation. Courts in the Second Circuit have held that registration of a collective or derivative work can cover its constituent parts when the registrant owns the copyrights in those parts. The court found that London Records, through its relationship with Warner Music, had the relevant rights when the compilation was registered. It also rejected the defendants’ arguments that the registration excluded “Electric Avenue” or that the recording had to be unpublished when the compilation was registered.

Fair use and liability

The court considered the four statutory fair-use factors. Fair use is a complete defense to copyright infringement, and the defendants had the burden of establishing it.

First, the court found that the video had little, if any, transformative character. The song was copied without changing its lyrics, vocals, or instrumentals, played for more than two-thirds of the video, and was not used to comment on or criticize the song. The court also found a commercial aspect because the defendants used the music in a promotional political video without paying the customary licensing fee.

Second, the court found that “Electric Avenue” is a creative and published work, placing it near the core of copyright protection. Third, the court found that the defendants used a substantial portion of the song and that the excerpt was central to the video. Fourth, the court found that widespread, uncompensated use of the song in promotional videos could harm the market for licensing the music. The court also found that the defendants’ use provided no public benefit that required use of this particular song, because they could have used another song, created a new song, or used no song.

Because all four fair-use factors favored the plaintiffs, the court granted the plaintiffs’ motion for partial summary judgment dismissing the defendants’ fair-use defense. Because the defendants asserted no other defense, the court held the defendants liable for copyright infringement as alleged in Counts I and II.

Disposition

The court denied the defendants’ motion for partial summary judgment dismissing Count II. It granted the plaintiffs’ motion for summary judgment dismissing the defendants’ fair-use defense and held the defendants liable for copyright infringement. The opinion does not state the amount of damages or resolve any other remedy.