United States: When is music in political campaigns transformative? SDNY Judge Rejects Trump’s Fair Use Arguments
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Political candidates have long used pop songs in their visual and audio campaign materials. For example, every time I hear Katy Perry’s hit song “Roar,” I am reminded of Hillary Clinton’s 2016 presidential race. But what if a campaign doesn’t get permission to use a song in their materials? If a campaign plays a song in a political video, for example, is the use of the song transformative and therefore fair? Last week, a federal judge in New York answered not necessarily.
On September 28, 2021, Judge Koeltl of the United States District Court for the Southern District of New York denied Donald Trump’s motion to dismiss the lawsuit of Guyanese-British singer Eddy Grant,
Grant et al versus Trump et al, no. 1:20-cv-07103. This decision follows the judge’s order directing the parties to file supplemental briefs addressing the Second Circuit’s amended opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al., No. 19-2420 (2d Cir. Aug. 24, 2021), where the Second Circuit “clarified” the meaning of transformer for the fair use analysis. You can read our latest article on the Andy Warhol Review amended here.
the To agree lawsuit actually stems from last year’s presidential election (yes, that was alone Last year!). On August 12, 2020, Trump posted an animated video on his personal Twitter account endorsing his campaign for re-election. According to the Court’s opinion, the video opens with a red high-speed train bearing the words “Trump Pence KAG [Keep America Great] 2020.” After the train passes, Eddy Grant’s song “Electric Avenue” begins to play along with one of President Joe Biden’s speeches. “Electric Avenue” was one of the biggest songs of the 80s, spending five weeks at number two on Billboard Magazine’s Top 100, and is a certified platinum hit.
A day after Trump released the animated video, Grant sent Trump a cease and desist letter, demanding that Trump refrain from any further infringement of Grant’s copyright. Grant then sued in September 2020, and Trump decided to dismiss in November 2020, asserting the affirmative defense of fair use.
Well, Judge Koeltl didn’t agree with any of Trump’s fair use arguments and devoted most of the opinion to discussing the first fair use factor: the purpose and character of the use, which includes transformative use analysis. Trump argued that the use of “Electric Avenue” in the animated video was transformative because the song and the video served different purposes: the video is political and the song is not. Judge Koeltl, however, said that this argument “misunderstands the focus of the transformative use inquiry”:
“While it is true that the animation is partisan political commentary and the song apparently is not, the investigation does not focus exclusively on the character of the animation; rather, it focuses on the character of animation’s use of Grant’s song. The Circuit Court of Appeals recently ruled [in Andy Warhol]“where a secondary work clearly does not comment on or refer to the original or does not use the original for a purpose other than that for which it was created, the mere assertion of a superior or different artistic use is insufficient to render a transformative work.'”
In other words, the video’s underlying political commentary doesn’t necessarily mean that Trump’s use of Grant’s work was transformative. Additionally, the Court notes that “Electric Avenue” is “instantly recognizable” because the video retains the essential elements of the song. This way, the creator of the video could have used any other song without affecting the political message of the video.
Judge Koeltl acknowledges that “[t]there is a certain inherent tension between promoting valuable political satire and the copyright protections of existing art that satirists may wish to use as source material.” But using a song in a political campaign does not does not necessarily make the use political or transformative.
Judge Koeltl spends less time on the last three prongs of the fair dealing analysis, finding that they all favor Grant.
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