Trump lawyers are set to argue in court this week that the hit '80s song 'Electric Avenue' wasn't properly copyrighted (2024)

The UK citizen and Barbados resident is one of some two dozen artists who have objected to Trump's use of their music during his three presidential campaigns. But no musician has tangled with Trump more publicly and extensively than Grant.

Most artists simply send cease-and-desist letters, with only Grant and two others actually filing lawsuits. (Neil Young's 2020 suit against Trump — for the former president's use of "Rockin' in the Free World" and "Like a Hurricane" at rallies — quietly settled for an undisclosed sum four months after it was filed. The estate of Isaac Hayes sued Trump in August over his use of "Hold On, I'm Coming," and that case is just getting started.)

Despite its relatively low monetary stakes, Grant's lawsuit is being challenged aggressively by Trump, and the oral arguments scheduled for this Friday are set to debut an extraordinary defense.

Trump's lawyers are expected to argue that, for decades, Grant somehow neglected to copyright the sound recording, or "master," for "Electric Avenue."

Trump's lawyers acknowledge that Grant copyrighted the sheet music 40 years ago. But they say he failed to similarly protect the actual recording that people have danced to at parties and nightclubs since 1983, when the song exploded from an early MTV staple to a platinum single.

Trump's legal team argues that Grant never protected what copyright law calls "the fixation of a series of musical and spoken sounds to a 'phonorecord.'" Therefore, they say, there was no sound-recording copyright for Trump to infringe on.

And since Grant's lawsuit claims Trump infringed on not only the sheet-music copyright but the sound-recording copyright as well, the defense wants the latter claim — the sound-recording half of the lawsuit — thrown out now, even before a trial.

Grant traces the record's copyright to 2001

Not surprisingly, Grant's lawyers see things differently.

They say Grant registered the US copyright for the sheet music for Electric Avenue in 1983, the year it hit the charts.

And they trace the sound-recording copyright back to 2001. That's the year Warner Records issued "Eddy Grant: The Greatest Hits," a compilation of 16 songs, one of which was "Electric Avenue."

Warner Records' rights to the 16 songs expired five years later, in 2006. That year, the artist's lawyers say, the label's US copyright for the greatest-hits album was transferred to Grant's company, Greenheart UK.

Since then, his lawyers say, Grant has remained the owner of that sound-recording copyright, which covers all 16 songs on the album, including "Electric Avenue" — a song even the judge, US District Judge John G. Koeltl, has said is "recognizable" and "catchy."

A last-minute registration

Dueling court filings indicate the two sides will argue Friday over whether Grant's copyright covers only the album itself (as Trump's side says) or every song on the album individually (as Grant's side says).

Trump's side may argue that even Grant has tacitly acknowledged that the sound-recording copyright for "Electric Avenue" was never properly nailed down. Two weeks ago, on August 15, Grant applied to the US Copyright Office "for a sound-recording copyright registration of Electric Avenue," a court filing says.

"Plaintiffs have requested expedited handling of the application and expect to have the registration number available for the Court before the scheduled oral argument," the Grant attorney Brett Van Benthysen told the judge in an August 16 filing.

Meanwhile, no trial date is in sight.

The case has dragged on through four years of pandemic delays, attorney switch-ups, and extensive and ultimately failed settlement negotiations.

Trump was deposed in the case in April 2022. So, too, was his former social-media director, Dan Scavino, who court records show fought his deposition subpoena before eventually submitting to questions about his role in posting the tweet.

And Grant has been deposed by Trump's lawyers, who asked the artist to "explain" the song. "Do I have to?" Grant responded, according to a transcript excerpt. "That sounds like a trick question," he said.

An eventual trial will probably center on whether the song's inclusion in the cartoon was an allowable "fair use" of the work under copyright law, which allows works of art to be transformed or excerpted under limited circ*mstances.

The sides are also set to battle over how much, if at all, the dollar value of "Electric Avenue" was impacted by its appearance in Trump's Twitter feed.

A lawyer for Trump didn't respond to requests for comment on this story. Van Benthysen, the lawyer for Grant, declined to comment.