Trump may win the copyright battle against Eddie Grant, but is it really deserved? Find out why!

Donald Trump and copyright infringement lawsuits

Former President Trump is one of the most interesting characters ever to appear on the American political landscape.

Trump's ability to attract and generate controversy will go down in history, as will his numerous appearances in copyright infringement lawsuits.

In 2020, musician Eddy Grant filed a complaint against Trump and, three years later, there's little positive to report for the parties involved.

Ignorance and emotion fuel the fire

The context of the lawsuit can be summarized as follows: during the presidential election campaign, someone connected to Trump and his campaign posted this animation on Twitter, depicting a struggling Joe Biden.

The Trump campaign's decision to include the 1982 hit "Electric Avenue" as background music infuriated Eddy Grant, the British singer-songwriter behind the song. Although the use of his song without permission provided Grant with a legal means of retaliation, court documents made it clear that Grant was deeply offended by the fact that his music was being used to promote Trump's campaign.

Recently, a confident Trump claimed he could end the war in Ukraine in 24 hours. This is in stark contrast to the record of this case, which currently stands at 108 filings over a 36-month period.

Three years of toxic waste

While Grant is a man of integrity, he doesn't appear to be unreasonable. A brief phone call from Trump, freshly enlightened after 10 minutes spent on Wikipedia learning about the Brixton riots, what caused them and that the use of "Electric Avenue" was never intended to offend, might have helped. Bridges can always be built to common ground; for example, both parties' shared appreciation for Chuck Berry, or how Grant survived a heart attack in 1971 and might be willing to share some advice.

However, Trump rejected Grant's settlement offer. In a motion to reject, the man on the verge of becoming the most powerful man in the world, wealthy beyond most people's imagination, told Grant he would get nothing for his unwitting contribution to the presidential campaign. Because Grant had created the song for entertainment purposes and Trump had used it for political commentary, this constituted a "fundamentally different and novel purpose" covered by the fair use doctrine.

Use was not fair

In October 2021, U.S. District Judge John Koeltl ruled that each of the fair use factors weighed in Grant's favor. The Trump campaign's use of "Electric Avenue" was nothing more than "wholesale copying" and it had no license or permission in place to make it legal.

However, in a move that validated the calls for justice and social equality found in many of Grant's songs, Trump's legal team reminded the musician that some people remain more equal than others.

"Plaintiffs' claims against Donald J. Trump are barred, in whole or in part, because of absolute presidential immunity."

Statements made during Donald Trump's subsequent deposition are not part of the public record, but the fact that a deposition took place is both remarkable and, at this point, depressing.

Grant's motion for summary judgment

On September 15, 2023, plaintiffs and defendants filed motions for summary judgment in a Manhattan federal court to keep the case from going to trial. Grant's motion indicates that despite the previous rejection of a fair use defense, Trump's team remains unwavering.

"Defendants will rely on the affirmative defense of fair use, which the court rejected at the argument stage. Discovery indisputably revealed that defendants' use of the works was not transformative and does not fit any theory of the fair use doctrine," the motion states.

"The defense, for which defendants have the burden of proof, should be rejected again as a matter of law and plaintiffs' motion that defendants have committed copyright infringement should be granted in its entirety."

For reasons not immediately obvious, large sections of the motion are redacted, particularly those concerning the deposition of Dan Scavino, Trump's social media advisor.

Repercussions of the lawsuit

On the basis that fair use is a legal defense, not immunity from prosecution, the actions of Trump's team represent another chilling effect on those who rely on fair use to research, teach, learn or report the news.

The message here is that if a third party is rich and stubborn, a fair use defense that has no realistic chance of success can be dragged out for years until the rights holder has no more money, or even the will to continue.

In this case, a fundamental administrative problem could leave the court with no choice but to side with those who benefited from a copyrighted work, refused to pay for it, and ultimately succeeded through financial power and sheer luck. The fact that fair use was the vehicle adds insult to injury.