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