Tangerine Motion To Dismiss Denied: Eddy Grant May Get To A Jury, On Whether "Electric Avenue" Was Stolen By Baby-T's Campaign In 2020...

This is not unexpected, given the brazen nature of the theft of this artist's work, by Baby-T and his people. But it is good news, to be certain.

It also makes out a nice case of classic "false light" publicity, having been viewed over thirteen million times (for which the artist's consent was never even sought -- let alone obtained, by the MAGA campaign people), since Tangerine well-knew that an aritst singing a song about British police brutality against people of color, in the 1980s, would not be any form of endorser of any of Baby-T's lawless and still ongoing racist behaviors.

Here's the latest update, on this fascinating case -- a 21 page memorandum opinion entered tonight by the able USDC Judge Koeltl, in Manhattan:

. . .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 can be heard beginning at around the fifteen-second mark of the video, and continues through the duration of the fifty-five second video. . . .

[T]he video had been viewed more than 13.7 million times; the Tweet containing the video had been "liked" more than 350,000 times, re-Tweeted more than 139,000 times, and had received nearly 50,000 comments. Compl. ii 43-44. The defendants did not receive a license or Grant's permission to use the song in connection with the animated video. . . .

In this case, the video's overarching political purpose does not automatically render its use of any non-political work transformative. See, e.g., Henley v. DeVore, 733 F. Supp. 2d 1144, 1164 (C.D. Cal. 2010) (rejecting fair use defense at the summary judgment stage where creators of political campaign ads rewrote some of the lyrics but appropriated the melody, rhyme scheme, and syntax of two Don Henley songs without permission); Browne v. McCain, 612 F. Supp. 2d 1125, 1129-31 (C.D. Cal. 2009) (rejecting fair use defense at the motion to dismiss stage where a political campaign ad featured a Jackson Browne song without permission, even though other audio was played on top of the song). As to the character of the video's use of Electric Avenue, it is best described as a wholesale copying of music to accompany a political campaign ad. . . . In this case, the video's creator did not edit the song's lyrics, vocals, or instrumentals at all. . . .

It is plain that widespread, uncompensated use of Grant's music in promotional videos -- political or otherwise -- would embolden would be infringers and undermine Grant's ability to obtain compensation in exchange for licensing his music. The [Trump Team does] not seriously dispute this. . . .

Baby T's remaining campaign funds, and the GOP's, are going to have to foot a very big bill here -- in about a year, when Mr. Grant wins on the merits. And that will be. . . rough justice. . . grin.

[As a footnote, we will also report that Tangerine's preposterous NDA provisions were tossed by a New York arbitrator last Friday, freeing up Omarosa's book sales, and appearances (and perhaps, eventually, even video tapes of Trump uttering racist swearwords) for publication and dissemination. The public has a right to know about views of the occupants of 1600 Penn -- a right that exceeds the rights to privacy of ordinary people -- those who do not seek higher office.]

नमस्ते