from the um,-no dept
The election is over and, no matter the current administration’s flailings, Joe Biden is now President Elect. It was, well, quite a campaign season, filled with loud interruptions, a deluge of lies, and some of the most bizarre presidential behavior on record. And, rather than running on his own record, the Trump Campaign mostly went 100% negative, filling the digital space with all kinds of hits on Biden.
One of those was a crudely put together video that showed a Trump/Pence train zipping by on some tracks, with a Biden hand-car chugging behind him. On the Biden train car were fun references to smelling hair and other childish digs. Some clips of Biden speaking made up the audio for the spot, along with the hit song from 1983 “Electric Avenue.” Tweeted out on Trump’s personal Twitter account, it turns out that nobody had licensed the song for the video, leading Eddy Grant to sue the President.
Trump’s defense in a motion to dismiss is… fair use. How? Well…
His campaign argues that it was transformative to use the song over a cartoon version of Joe Biden driving an old-fashioned train car interspersed with his rival’s speeches.
“The purpose of the Animation is not to disseminate the Song or to supplant sales of the original Song,” states the motion. The motion points to lyrics from “Electric Carnival”: “[N]ow in the street, there is violence… And a lots of work to be done.”
“These lyrics, however, stand in stark juxtaposition to the comedic nature of the animated caricature of Former VP Biden, squatting and pumping a handcar with a sign that says, ‘Your Hair Smells Terrific’, and to the excerpt of the overlayed speech that references ‘hairy legs’ and kids playing with his leg hair. Obviously, Mr. Grant’s purpose of creating a meaningful song for the pop music market is completely different from the Animation creator’s purpose of using the song ‘to denigrate … Former Vice President Joseph Biden.’”
On that last bit, we can agree. However, using the song in a campaign ad meant to denigrate Joe Biden no more makes that use transformative than if a grocery store used it to sell steaks. That isn’t what makes the use transformative, despite my near certainty that Eddy Grant didn’t intend to sell steaks with “Electric Avenue”.
The motion goes on to suggest that nobody is going to go watch the campaign video instead of buying Grant’s song, therefore the use doesn’t effect the market for the song. While true, the claims about the other two factors in considering fair use — the nature of the copyrighted work and the portion of the work used — don’t sound particularly convincing. The motion says that the video only used 17% of the song in the video, or forty seconds of the song in total. Again, true, except that the video itself is something like 50 seconds long, so the copyrighted work is playing for nearly the entire video. And it’s played prominently.
As to the nature of the copyrighted work… hoo boy.
Here, the Song is a creative work, but it was published in 1983 (Compl. ¶ 25), and it remains, more than 37 years later, available to the public. This weighs in favor of fair use.
Um, no. The fact that it’s a creative work, as opposed to one comprised of factual information, weighs against fair use, not for it. It being published in the 80s and still available now is, well, completely besides the fucking point.
I will be absolutely shocked if this motion isn’t laughed out of the courthouse.