A New Case To Follow: Tangerine Stole Eddy Grant's 40 Year Old "Electric Avenue" -- For A Campaign Video To Mock Mr. Biden... And Assert White Supremacy Themes...

Tangerine never asked -- never even made a phone call; he neither paid for a license (as I have, for the vast bulk of the original, private, unpublished / embedded photographic works I've used), nor asked permission / sought clearance from ASCAP.

Eddy Grant quite rightly sued in federal court in Manhattan, since the implication by the 2020 Trump Campaign was that Eddy, and his music, were anti-Biden and pro-Trumpers. . . the ad even used some of Grant's original, finished music video footage, to depict a train. . . and then associated that fast train, with Trump. Here is why Trump will lose (from Mr. Grant's fine memo of law):

. . .[Citing the Henley case:] The defendants’ songs [do] not comment on the plaintiff’s work, but instead use the same themes to comment on entirely different subjects, namely Boxer, taxation, global warming, and the proposed cap-and-trade program. . . . The song may mock political views that Henley allegedly supports, but that is insufficient justification for appropriating Henley’s works, as discussed above. The Defendants have innumerable alternatives with which to mock Boxer and her policies. . . .

The Defendants also argue that, even if their works are more satirical than parodic, they may still constitute fair use, citing Blanch v. Koons, 467 F.3d 244, 247 (2d Cir.2006). This is undoubtedly true; parody is not the only form of fair use. However, as noted in Campbell satire faces a higher bar for fair use because it requires greater justification for appropriating the original work.

Defendants here concede in their moving brief (Def. Mem. at 1), that they deem the Infringing Video to be “satire” rather than parody, thus they face a higher burden and require a greater justification for the use of Plaintiffs’ Works. They have not met that burden. As the Supreme Court held in Campbell, 510 U.S. at 580-581, “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Defendants have offered no justification for using “Electric Avenue,” rather than any other composition, as the musical underscore for the Infringing Video.

Moreover, as the Ninth Circuit recently held in Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 2020 WL 7416324 (9th Cir. Dec. 18, 2020), merely incorporating elements of existing material into a new context to make a “funny” juxtaposition does not thereby critique or comment on the borrowed material. . . .

In general, I obviously support fair use, by artists -- I employ it daily here. But I make no profit from the use, I transform the work(s) -- and while I take no money. . . mine is almost exclusively critique and education, at the core.

But when a racist white supposed billionaire steals a black artist's work, without attribution -- to promote white supremacist rhetoric. . . whelp -- there we draw a line in the sand. Tangerine is. . . in sum, no artist.

Out, grinning. . . . be excellent to one another.

नमस्ते