Trump loses motion to dismiss Electric Avenue case on fair use grounds

Grant v. Trump, No. 20-cv-7103 (JGK) (S.D.N.Y. Sept. 28,

Eddy Grant sued Trump and his campaign for retweeting a
pro-Trump video that used Grant’s famous “Electric Avenue” without authorization.
Although the motion to dismiss was far better argued than the average Trump filing,
it still failed—in the process signaling that the effects of Warhol may
not be limited to visual art, as many had hoped.

The animated video was 55 seconds long. It begins with a
depiction of a high-speed red train that displays “Trump Pence KAG [Keep
America Great] 2020.”

After the red train passes, the
beginning of Electric Avenue can be heard clearly, along with an excerpt of a
speech by President Biden. Around the same time, a slow-moving handcar,
operated by an animated likeness of President Biden, comes into view bearing
the words “Biden President: Your Hair Smells Terrific.” The video—in
particular the contrast between the trains and the unflattering nature of the
excerpted language from President Biden—appears intended to criticize President
Biden and depict the strength of former President Trump’s campaign.

Grant’s song appears throughout the last 40 seconds of the

Fair use can rarely be decided on a motion to dismiss, the
court said, and this wasn’t one of those cases.

Transformativeness: Just because the video and song served
different purposes didn’t make the video transformative. “While it is true that
the animation is partisan political commentary and the song apparently is not,
the inquiry does not focus exclusively on the character of the animation;
rather, it focuses on the character of the animation’s use of Grant’s song.”
Under Warhol, when there isn’t “obvious[]” comment or relation back, or
use of the original “for a purpose other than that for which it was created,”
then “the bare assertion of a ‘higher or different artistic use[]’ is
insufficient to render a work transformative.” Here, “the video’s overarching
political purpose does not automatically render its use of any non-political
work transformative.”

The use of the song itself in the video was “best described
as a wholesale copying of music to accompany a political campaign ad.” Compared
to other political cases like the Don Henley/Running on Empty case, “the use here
does far less—if anything—to modify the song or to comment on the song or its
author,” whereas in Henley defendants changed lyrics and provided their
own vocals, and supposedly poked fun at Henley’s own liberalism, and
still that wasn’t transformative because the ad took too much in relation to
any legitimate parodic purpose. Here, there was no editing of the “lyrics,
vocals, or instrumentals at all.” Further, “the animation does not use Electric
Avenue as a vehicle to deliver its satirical message, and it makes no effort to
poke fun at the song or Grant.” This was less-favored satire rather than
parody, and “defendants have offered no justification for their extensive

Cariou, by contrast, involved fair uses where works were
“obscured and altered to the point that [they were] barely recognizable.” The
non-fair-use-as-a-matter-of-law works in Cariou “superimposed other
elements that did not obscure the original [work,] and … the original [work]
remained …     a major if not dominant
component of the impression created by the allegedly infringing work.” Likewise,
in Warhol, there was no fair use because the secondary work “retain[ed]
the essential elements of the [original work] without significantly adding to
or altering those elements.”

So too here. Electric Avenue wasn’t edited at all and was “instantly
recognizable”; the additional audio of President Biden’s speech did nothing to
obscure the song; and the song, which lasted over 2/3 of the video was, “a
major component of the impression created by the animation, even though it
appears that the video’s creator could have chosen nearly any other music to
serve the same entertaining purpose.”

Brown v. Netflix, Inc., 462 F. Supp. 3d 453 (S.D.N.Y. 2020),
aff’d, 855 F. App’x 61 (2d Cir. 2021), found a documentary’s unauthorized use
of a song to be transformative and fair, but that case was readily
distinguishable. That film used 8 seconds of a song as part of the film’s “commentary
on the burlesque art form and its resurgence in Portland, Oregon.” The film
combined the burlesque performances “with cultural commentary on topics such as
gender, sexuality, and the artistic process,” and incidentally captured a dancer’s
use of the song as background for her performance. “The use here is different
in magnitude and kind: the song plays for more than two-thirds of the animation
and plays no discernible role in communicating the video’s overarching
political commentary.” Brown, by contrast, used the brief excerpt as
part of a performance about which the documentary was commenting, and the
content of the song “substantively contributed to the burlesque act.”

Also, the use here was commercial because “commercial” in
§107 doesn’t mean commercial, but “whether the user stands to profit from
exploitation of the copyrighted material without paying the customary price.”
[Really sad that GvO didn’t address this—there seems to me no chance
that the current textualist Court would accept this conflation of a factor one consideration
with factor four’s market inquiry.] The use in Henley was commercial because
defendants “stood to gain publicity and campaign donations from their use of
Henley’s music.” Here, “the possibility of commercial advantage cannot be
excluded at this point, especially in light of the instruction from the Second
Circuit Court of Appeals that ‘the profit/non-profit distinction is context
specific, not dollar dominated.’”

Another SDNY case, MasterCard Int’l Inc. v. Nader 2000 Primary
Comm., Inc., No. 00-cv-6068, 2004 WL 434404 (S.D.N.Y. Mar. 8, 2004), held that
a political advertisement’s parody of a popular MasterCard commercial was a
noncommercial use because the candidate used the original work “as part of his
communicative message, in the context of expressing political speech.” But that
wasn’t the same as the use here. “Nothing about the song was integral to the
video’s political message,” and in their arguments, “the defendants explicitly
disclaim any overlap between the purposes of the song and the video.” [Note the
move here from whether the defendant’s overall product was commercial to whether
the use of the plaintiff’s work was commercial—I am not sure that’s supported
by the statute; I am sure that carving works up this way is going to make fair
use harder to litigate and resolve, and will require inquiry into meaning that
contrasts sharply with Warhol’s disavowal of any such inquiry—a sort of
heads I win, tails you lose effect. FWIW, I think the use here is plausibly
nontransformative but noncommercial, and that market effect can make
noncommercial uses unfair.] Confirming that the court is making its commerciality
finding dependent on its transformativeness finding, the court reiterates that
the video wasn’t parodying the song or using it for commentary, unlike the Nader
ad. “Moreover, there is a well-established market for music licensing, but the
defendants sought to gain an advantage by using Grant’s popular song without
paying Grant the customary licensing fee.”

Nature of the work: creative and published, but “the fact
that a work is published does not mean that the scope of fair use is per se
broader.” But factor two has limited weight.

Amount/substantiality: Quantity and quality favored
plaintiffs. “The introductory portion of the song that is used in the animation
is immediately recognizable. The excerpted portion of the song also includes
the chorus, which … is of central importance to the original work.” While the
excerpt was only 17.5% of the song’s total length, it played for 72.7% of the ad’s
duration. The quantity and value were plainly not reasonable in relation to the
purpose of the copying. “

Market effect: Market analysis “embraces both the primary
market for the work and any derivative markets that exist or that its author
might reasonably license others to develop, regardless of whether the
particular author claiming infringement has elected to develop such markets.”
And it was “plain that widespread, uncompensated use of Grant’s music in
promotional videos—political or otherwise—would embolden would­be infringers
and undermine Grant’s ability to obtain compensation in exchange for licensing
his music.” Grant didn’t need to show that he intended to enter the market for
licensing music to promotional videos, especially on a motion to dismiss, given
the defendants’ burden to show lack of market harm.

The fourth factor also, per GvO, “take[s] into
account the public benefits the copying will likely produce.” Though political
speech, and in particular “[t]he act of ridiculing and lampooning public
figures[,] is a rich part of our First Amendment tradition,” denying fair use—especially
denying a motion to dismiss on fair use—won’t chill “legitimate political
satire. Creators of satirical videos like the one at issue here must simply
conform any use of copyrighted music with copyright law by, for example: paying
for a license; obtaining the copyright owner’s permission; or ‘transforming’
the chosen song by altering it with new expression, meaning, or message.” Defendants
could reassert fair use at the summary judgment stage on a more developed
factual record.

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