Eddy Grant Just Won Summary Judgment -- Against Tangerine 2020, For Theft Of His Copyrights, In And To "Electric Avenue." WOOT!

We've covered this story for about four years. The Trump 2020 Campaign used "Electric Avenue" without payment or permission in his 2020 campaign ads. In sum. . . he stole it.

Tonight, the USDC in Manhattan ruled he is liable for that. The only task left then, is to assess damages by trial. My bet is Tangerine will settle this one -- rather than add to bevy of litigation already pending, where judgments have found him liable into the half-billion dollar range. It is supremely ironic that the musical work he stole. . . was originally a protest against Brixton (UK) police brutality -- against Britons of color. Here's the 31 page ruling -- and a bit:

. . .As the Court previously found, “[a]s to the first consideration, it is clear that Electric Avenue is a creative work and therefore is closer to the core of intended copyright protection.” Grant, 563 F. Supp. 3d at 287–88 (citing Campbell, 510 U.S. at 586; Henley, 733 F. Supp. 2d at 1160). The defendants “concede that [Electric Avenue] is a creative and published work, and therefore the second fair use factor favors Plaintiffs.” Defs.’ Opp’n at 14.

Accordingly, the second factor, although “assigned limited weight in the overall fair use determination[,]” Grant, 563 F. Supp. 3d at 288 (citing Authors Guild v. Google, Inc., 804 F.3d 202, 220 (2d Cir. 2015)), favors the plaintiffs. . . .

The third fair use factor considers “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). “In assessing this factor, [the court] consider[s] not only the quantity of the materials used but also their quality and importance in relation to the original work.” Andy Warhol Found., 11 F.4th at 45–46 (quoting Campbell, 510 U.S. at 587).

As this Court found in its decision denying the defendants’ motion to dismiss, “[t]he song plays for the majority of the animation; the excerpt is of central importance to the original work; and the defendants have not articulated any purpose for the copying.” Grant, 563 F. Supp. 3d at 288. . . .

In other words, the issue “is not solely whether the secondary work harms an existing market for the specific work alleged to have been infringed. Rather, [the court] must also consider whether unrestricted and widespread conduct of the sort engaged in by [the defendants] would result in a substantially adverse impact on the potential market[.]” Id. at 49 (citing Campbell, 510 U.S. at 590).

In this case, there is no public benefit as a result of the defendants’ use of “Electric Avenue.” As the plaintiffs correctly argue, the defendants “could have used any song, created a new song, or used no song at all, to convey the same political message in the Infringing Video.” Pls.’ Reply at 5, ECF No. 121. And as the Court previously found, while “political speech . . . is a rich part of our First Amendment tradition[,] denying the defendants’ fair use defense in this case . . . will not chill legitimate political satire.” Grant, 563 F. Supp. 3d at 289. Even after discovery in this case, the defendants provide no evidence of public benefit. See Defs.’ Opp’n at 11-14.

The defendants also argue that the plaintiffs “have previously shown no interest in licensing the Song for political use, and have strongly indicated that they have no interest in doing so in the future[.]” Defs.’ Opp’n at 14. However, the definition of “potential markets” is not so narrow; it includes any markets that “creators of original works would in general develop or license others to develop.” Campbell, 510 U.S. at 592. The plaintiffs’ ability to license “Electric Avenue” in the market for licensed music for videos -- political or otherwise -- would be affected by widespread, uncompensated use. . . .

Onward, grinning!

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