Donald Trump Asserts Fair Use, 'Absolute Immunity' In Lame Attempt To Evade Copyright Suit By Eddy Grant

from the and-then-we'll-take-it-higher dept

Eddy Grant, responsible for the banger Electric Avenue, has made it onto our pages a couple of times in the past, most recently over a copyright spat with Donald Trump. At issue in the lawsuit was the Trump campaign sending around a video of a "Trump/Pence" train zipping by, with a Biden hand-car chugging behind it. While there were lots of references to Biden sniffing people's hair (seriously, what is that?) and other silly jabs, the real problem is that the entire video has Electric Avenue playing as its soundtrack. Eddy Grant didn't like this, of course, and sued over it. Trump tried to get the suit tossed on fair use grounds, arguing that the use of the song was transformative... but that isn't how it works. Simply using the song in a way the author didn't intend doesn't make the use transformative. Were that the case, every commercial advertisement out there would feature copyrighted songs as backgrounds to selling all manner of things. Again, not how it works and the court refused to toss the suit in response to Trump's Motion to Dismiss.

And so now this whole case moves forward and Trump is once again asserting fair use in his answer to the complaint... but with a twist! More on the twist in a moment, but first the fair use argument.

Former President Trump denied Eddy Grant's copyright infringement claims in a formal response submitted to the court late Monday night.

"Defendants deny that they have willfully and wrongfully infringed Plaintiffs' copyrights," the response said. "Plaintiffs' claims against Defendants are barred, either in whole or in part, by the doctrines of fair use and/or nominative use."

So pretty much the same fair use argument that was made in Trump's initial motion to dismiss (embeded below). This argument almost certainly won't work. And, while I don't find myself arguing against fair use very often, this one doesn't make a whole lot of sense. The video used a significant portion of the song and the song was used in nearly the entire video in question. And, while Trump asserted the video was parody, it's not parody of Electric Avenue. That's the point of the parody defense: the use of a work in order to satirize it. That isn't what's happening here. The target of the satire is Joe Biden, not Eddy Grant or his song.

It seems like Trump's legal team might realize that argument is a loser as well, given that the added twist I mentioned earlier.

The former president also asserted Grant cannot sue him because of what Trump's attorneys called "Presidential absolute immunity."

So, here's the thing: someone really needs to get Donald Trump in a room, sit him down, and explain to him that he cannot simply shout "presidential immunity!" every time something in his life doesn't go the way he wants to make it magically go away. This immunity claim is something he's using with wild abandon, including in far more serious realms like in denying requested documents for the January 6th committee.

But this is far more absurd. It wasn't Donald Trump, the President, that put out this video. Rather, it was the Donald Trump campaign that did so and that campaign very much does not qualify for presidential immunity, "absolute" or otherwise. Immunity for presidents from prosecution or suit typically ends when that person is no longer president and, last time I checked, the subject of the mockery in the video is president now, not Donald Trump.

"Given the court's recent favorable determination, there are very few issues that remain to be resolved. We are confident that our clients' rights will ultimately be fully upheld and look forward to Mr. Trump fully explaining his actions," Grant's attorney, Brian Caplan, said in a statement provided to ABC News.

That's the sound of a lawyer quite confident in his case. And it's frankly quite hard to argue with him.


Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: absolute immunity, campaign commercial, copyright, donald trump, eddy grant, electric avenue, fair use, presidential immunity, sovereign immunity


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Stephen T. Stone (profile), 22 Oct 2021 @ 3:49pm

    Ah, it’s the thing Trump fears most: consequences for his actions.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 22 Oct 2021 @ 4:05pm

    Well if you insist...

    If he wants to argue that presidential immunity applies in this case then it certainly seems like after the judge laughs that argument out of court any fines for infringement should be levied against him personally and shouldn't be dumped on the campaign, since he just claimed that he was directly responsible and involved with the ad and use of music.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    anon, 22 Oct 2021 @ 4:27pm

    biden sniffing hair

    Its a meme taken from CNN or C-SPAN video footage of Senator Joe Biden holding onto young girls and sniffing their hair. The kind of attention that would get a normal person shot.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 25 Oct 2021 @ 8:12am

      Re: biden sniffing hair

      "The kind of attention that would get a normal person shot."

      Well, Biden's opposition was able to get away with stating that they could grab a woman by the pussy without complaint, got into a lawsuit over a porn star divulging her private affairs with Mr. Trump, and is on public record naming his good buddy Jeffrey Epstein a "terrific guy"...so if you feel you have to compare just those two Biden still comes out ahead.

      It's a pretty solid indicator that the #MeToo movement has uphill work in DC but if we're talking about getting people shot Biden won't be first, third, tenth or hundredth in line.

      For some odd reason the vast majority of sex scandals involving nonconsenting people seems to also involve republicans these days.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2021 @ 4:38pm

    Since Trump never pays anyone for anything, I can't say I'm surprised to see that his campaign failed to get a license to use the music.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2021 @ 4:51pm

    explain to him that he cannot simply shout "presidential immunity!"

    This is the guy who claimed he could shoot people in the street and no one would do anything about it.

    reply to this | link to this | view in chronology ]

    • icon
      Discuss It (profile), 22 Oct 2021 @ 5:37pm

      Re:

      Not exactly right. He said he could shoot anyone in the streets of New York City and not lose any votes. He's correct in that no one in NYC, right mind or not, would vote for him under any circumstances. New Yorkers know him. They've watched him since before Fred Sr. was called to report to Satan in the Head Office. There's a reason Donnie doesn't walk the streets in SoHo without a body guard. He'd be torn limb from limb and the quivering bloody mass defecated upon.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 22 Oct 2021 @ 5:44pm

        Knowingly lying about a pandemic comes to mind...

        The messed up thing is I'm pretty sure he was accurate in that statement both in that it wouldn't cost him any NYC voters(I'll take your word on how much they hate him) or voters in general, as given everything else his cultists have given him a pass on 'gunned down some person in NYC' would hardly be the worst.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2021 @ 3:06pm

        Re: Re:

        While your paraphrase is more accurate, it's the spirit of his statements, more than the letter, to which i appeal in my comment. (i mean, the letter of his meandering puffery barely makes sense 90% of the time anyway.)

        But yeah i expect New York is much more aware of the guy, although it's like large sections of the nation at large hadn't heard anything about his ongoing bullshit since the 70s or whatever, or (more likely) they are just down with his kind of crap, sadly.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 25 Oct 2021 @ 8:15am

        Re: Re:

        Well, old #45 still got 3,2 million votes in NYC. I'm assuming New Yorkers are far from immune to the "one born every minute" syndrome.

        reply to this | link to this | view in chronology ]

        • icon
          Samuel Abram (profile), 26 Oct 2021 @ 3:38pm

          Re: Re: Re:

          Unfortunately, you're right: https://gothamist.com/news/tyranny-nyc-municipal-workers-march-city-hall-protest-covid-vaccine-manda te

          This saddens and angers me as a New Yorker.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 27 Oct 2021 @ 6:26am

            Re: Re: Re: Re:

            From what I recall of New York when I visited - way before even 9/11 - the city was way less hostile - not to mention way less dumb - than what I keep seeing and hearing now. Back then Trump was a joke, falling out of suckers willing to trust him with their money but not quite a full-time WWW or reality TV celeb. And NYC residents prided themselves on not taking wooden nickles.

            These days it's what, 25% or so of New Yorkers all suddenly dumber than bags of hammers and are willing to hand over their life savings and the lives of their relatives to honor Dear Leader.

            WTF happened?!

            reply to this | link to this | view in chronology ]

            • icon
              Samuel Abram (profile), 27 Oct 2021 @ 8:14am

              Re: Re: Re: Re: Re:

              I think you're looking through the past through rose-colored spectacles, my good friend. See, there were always those suckers in NYC and people willing to swindle them. See:
              -Charles Ponzi
              -Bernie Madoff
              -George C. Parker
              and I'm just scratching the surface of the tip of the iceberg. While change is pretty much a constant in NYC's life, it's also true that a constant of NYC is that there are con men willing to prey on the good will of other people. Hell, the island of Manhattan was bought by Peter Minuit for 60 guilders, which is about $1,143 in 2020 dollars. That's less than a month's rent in a studio apartment in Manhattan nowadays! So cheating people is kinda what we do around here.

              reply to this | link to this | view in chronology ]

              • icon
                Scary Devil Monastery (profile), 28 Oct 2021 @ 4:35am

                Re: Re: Re: Re: Re: Re:

                "...it's also true that a constant of NYC is that there are con men willing to prey on the good will of other people."

                Well, yea, but it's never been part of NYC's image that some 20% of New Yorkers are so daft they'll give the grifter the shirt off their backs and then march in that grifter's defense.

                Ponzi and Madoff trying to run in elections would have gained exactly zero votes back in the day - and that's counting their own families.

                reply to this | link to this | view in chronology ]

    • identicon
      Arijirija, 24 Oct 2021 @ 1:10am

      Re:

      Well, reduce the number of people down to one - namely himself - and I'm sure he wouldn't lose any votes if he shot himself in downtown New York NY.

      reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 22 Oct 2021 @ 5:01pm

    It's like Nixon's "if the president does it, it's not illegal" defense.

    If he'd used it for stuff he did nine months after resigning.

    reply to this | link to this | view in chronology ]

  • identicon
    John Hudson, 22 Oct 2021 @ 6:10pm

    Trump Asserts Fair Use

    Plenty of legal absurdity in the defense right now, but likely not to be so when Trump regains his place in the Big (White) House with a majority of servile Republican politicians and his myrmidons running Justice, the military and every other darned branch of administration. And that's what the polls say awaits us, what with a vocal minority swallowing the Kool-Aid, a weak-willed opposition, official nods to gerrymandering and already a Team Trump majority in the ultimate umpire's box.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Doane Effing Kerr, 22 Oct 2021 @ 8:26pm

    You REALLY are in so tight propaganda bubble that don't know...

    About sniffer Joe? Whew. Then again, you didn't know were NO WMD found in Iraq, whole war based on LIES.

    You may not have heard about the Afghanistan debacle, "Empty Shelves Joe", the Fuck Joe Biden chants at many sports games, AND how that hilariously was transformed into "Let's Go, Brandon!" by a clever sports talker, but it's backfired big-time since.

    Just don't read or listen to the MSM / NPR, Timmy, and you'll be better informed.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Doane Effing Kerr, 22 Oct 2021 @ 8:27pm

      Re: You REALLY are in so tight propaganda bubble that don't know

      Had a good run tonight on unguarded site, got in snipe at Maz and mention of the at least three ZOMBIES that popped out. -- But I don't need to tell YOU about the zombies, now do I?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2021 @ 1:17pm

      Re: Fuck your feelings

      Hows that kool-aid taste bro?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Oct 2021 @ 9:49pm

      Re: Re:

      Then again, you didn't know were NO WMD found in Iraq, whole war based on LIES.

      You mean the war that was launched during the 43rd Presidency? As in... a time when a Republican President was in charge? This is damning towards Biden how, exactly?

      Seriously, blue. Ten years ago this level of own-goaling from you was mildly entertaining. Now it makes me genuinely wonder if you weren't adopted after you got dropped on the asphalt one too many times as an infant.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 26 Oct 2021 @ 1:11am

        Re: Re: Re:

        "Now it makes me genuinely wonder if you weren't adopted after you got dropped on the asphalt one too many times as an infant."

        I'm a long time advocate of the idea that old Baghdad Bob may, in fact, just be a neural net directed to spilling a grab bag of wild GOP talking points over every thread. He's that unimaginative and disconnected from reality.

        reply to this | link to this | view in chronology ]

    • icon
      Avatar28 (profile), 26 Oct 2021 @ 9:54am

      Re: You REALLY are in so tight propaganda bubble that don't know

      I don't know how old you are so maybe you weren't around for things then but the whole invasion of Iraq thing happened under George H. W. Bush and Dick Cheney. Biden was just a Senator. He is no more culpable than any of the other 99 Senators.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 27 Oct 2021 @ 6:44am

        Re: Re: You REALLY are in so tight propaganda bubble that don't

        "I don't know how old you are..."

        Old "Baghdad Bob" used to comment exactly like this way back on Torrentfreak well over ten years ago and used to go ballistic here on TD in that same period.

        Hell, he used to come in swinging defending Cheney. So he's old enough he should really know better. Sadly if we've learned anything about him it would be that he's unable to view reality enough to learn from it.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2021 @ 9:19pm

    The nominative use argument is surprising...

    I don't see them calling out the piece by name anywhere...

    reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 23 Oct 2021 @ 7:27am

      Re: The nominative use argument is surprising...

      Yes, that's what really stood out to me. It's a trademark infringement defense, so no good against a claim of copyright infringement. But it doesn't work anyway, since titles of works aren't typically trademarkable, and nothing about Electric Avenue suggests that it would be.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2021 @ 9:29pm

    It wasn't Donald Trump, the President, that put out this video. Rather, it was the Donald Trump campaign that did so and that campaign very much does not qualify for presidential immunity, "absolute" or otherwise.

    True. But the campaign is not the only defendant named; Trump himself is a co-respondant.

    OTOH, campaigning is NOT one of the duties of the sitting president, and while the plaintiff may have to address it specifically, Trump isn't being sued in his official capacity as President. So it seems valid to bring up, if only to knock it back down again.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 22 Oct 2021 @ 10:03pm

    Futurtrumorama

    Fake news everyone!

    reply to this | link to this | view in chronology ]

  • identicon
    David, 23 Oct 2021 @ 2:38am

    No serious lawyer will work for Trump

    Given his performance lawsuits, it's likely to get you a bar referral and a bad rep in the profession. In addition, if he's not satisfied with the outcome (and given his increasingly lunatic attempts, that will be comparatively often the case) he'll dock your pay and it will require you more money in litigation to get it out than it would be worth.

    reply to this | link to this | view in chronology ]

  • identicon
    Flotsam, 23 Oct 2021 @ 3:59am

    A little bit of info for non-Brits: Electric Avenue is an actual place and has an interesting history.

    https://en.wikipedia.org/wiki/Electric_avenue

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2021 @ 4:50pm

    Isn't ANYONE going to mention ex-president trumps dementia?

    He lives in mar-a-lago, has convinced himself he "moved" the whitehouse to his own place and issues "executive presidential orders" for whats on the menu at his restaurants etc, believing he's still president.

    Seriously mental health issues at play. The guy is essentially now convinced he overturned the election and was returned as POTUS.

    reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 26 Oct 2021 @ 8:45pm

    FIFY

    So, here's the thing: someone really needs to get Donald Trump in a room, sit him down, and..

    ..smack the crap out of him.

    reply to this | link to this | view in chronology ]

  • icon
    Zane (profile), 27 Oct 2021 @ 1:27am

    This is exactly what copyright was designed for

    This is exactly what copyright was designed for, a textbook case. It's a necessary evil.

    1. Artists need control how their work is used, they can't afford to have their work associated with political adverts that are the opposite of their beliefs and their fanbases belief. It can harm their career, and reduce their ability to profit and perhaps even ability to sell future work if they are perceived negatively. It's exactly why you don't see many artists willing to have their music used to advertise constipation medicine. When it comes to adverts, the artist (or the copyright holder if different), wants to keep control of how the material is used.
    2. The purpose of copyright is to encourage those who want to use the material in certain ways to gain permission or purchase it. If they pay a willing artist or commission new music for their political advert then they will have helped fund artists meaning they can create more, or if they commission they will have aided the creation of new works.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 27 Oct 2021 @ 7:52am

      Re: This is exactly what copyright was designed for

      "This is exactly what copyright was designed for, a textbook case."

      No, that's the hyped presentation of copyright. I don't think anyone since the days of queen Anne has been gullible enough to actually believe in that portrayal of it.

      Not even the founding fathers, some of whom had grave reservations around the utility of it.

      What copyright usually does is it allows stakeholders to gouge massive numbers of individuals for minor sums and encourages copyright trolling while at the same time not often providing leverage against any defendant with actual legal muscle.

      Instead, if the goal is for an artist not to have their work associated with certain politics or commercial interests, I'd advocate fitting what is currently copyright under Trademark law instead.

      That's where you'll get the focus on public plagiarization, wrongful commercialization and abuse of the artists brand.
      Sure, Trademark law can and will be abused. But compared to the unholy dumpster fire which is copyright that's still like choosing between a serious case of bubonic plague or a serious case of head cold.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Oct 2021 @ 6:58pm

        Re: Re:

        That's the thing about copyright - the most grievous offenses against it are already covered by other aspects of law, IP-based or otherwise.

        The reason why copyright law is pushed is precisely the demand for unfettered, unchecked, and unrestrained control that the legal and judicial system have left to run amok ever since the days of "Home Taping is Killing Music".

        reply to this | link to this | view in chronology ]

      • icon
        Zane (profile), 28 Oct 2021 @ 12:31am

        Re: Re: This is exactly what copyright was designed for

        A trademark issue would be if they were using the bands name, logo, slogan etc. Not simply using the music without permission. It's a very straightforward copyright case, nothing to do with trademarks. You may not like the concept of copyright, but these sort of cases are exactly why it was invented.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 28 Oct 2021 @ 5:47am

          Re: Re: Re: This is exactly what copyright was designed for

          "You may not like the concept of copyright, but these sort of cases are exactly why it was invented."

          No, at best any positive use of copyright is an unintended side effect. Both in the case of Queen Anne's statute and the US article 8 nothing has ever been mentioned about the positives involving artists taking control.

          The UK version only describes the "public benefit" of giving control to publishing houses and the US version states only "for the progress of science and the arts".

          Copyright stakeholders - who aren't artists - have always been riding the idea that copyright exists to provide artists with control. None of which has ever been true.

          "Not simply using the music without permission."

          Beg to differ. Big, public, televised occasion with specific music giving the ambience to a political performance? That's brand and trademark right there. Hell, Nintendo has won several cases against fanart using trademark law on premises by far more flimsy.

          reply to this | link to this | view in chronology ]

          • icon
            Zane (profile), 28 Oct 2021 @ 8:53am

            Re: Re: Re: Re: This is exactly what copyright was designed for

            It's a given that copyright gives control. It doesn't have to explicitly be stated and underlined as a specific purpose, it's obvious to anyone objective that it is. In any exchange when we sell anything that involves stating conditions in use, we are seeking to exert some sort of control. We always have a choice not to sell to someone, if they will use the material against our wishes.

            for the progress of science and the arts

            I felt I covered this in my original comment. That's exactly what copyright is for, so Trump goes and commissions a new piece of work that would not have existed. Or purchase a piece from a willing artist. Surely that's textbook "for the progress of science and the arts", how is it not??? What isn't "progressing of science and the arts", is using content without permission for a political advert that is against the artist wishes (and in this case the artist and the copyright holder are one and the same). Indeed, the argument is it is detracting from the "progress of science and the arts" as the worry is an artist will be associated with Trump which is the polar opposite of the artists market, and effects his ability to create more content or profit from a particular work, which in some cases may mean he has to just go an work in some mind numbing job to pay the bills.

            Copyright stakeholders - who aren't artists

            The copyright holder is the artist unless he has come to an agreement, such as selling or agrees to transfer the copyright to someone else. But that's the artists decision, it is a free world. In this case they seem to be one and the same.

            This is a very simple copyright dispute, where the content has been used in a political advert that is not covered by fair use. This has nothing to do with trademarks.

            I wouldn't consider this to be a trademark dispute:

            • Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another.
            • Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark in the course of business.

            reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Advertisment

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Loading...
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.