Guyanese singer Ed­dy Grant has won a copy­right case against for­mer Pres­i­dent Don­ald Trump over the use of the 1980s dance hit, “Elec­tric Av­enue”.

On Fri­day, in a 30-page de­ci­sion, the judge found Trump li­able for dam­ages in a hot­ly-con­test­ed copy­right bat­tle.

In the first le­gal blow, the judge found that the song was prop­er­ly copy­right­ed.  In the sec­ond, the judge threw out the on­ly de­fense of­fered in the case: a claim that Trump had made “fair use” of the song.

“It’s every­thing we asked for,” Grant’s at­tor­ney Brett Van Ben­thy­sen said in an in­ter­view with Busi­ness In­sid­er. “One hun­dred per­cent.”

Grant, a UK cit­i­zen who lives in Bar­ba­dos, has been told of the de­ci­sion, said an­oth­er of his lawyers, Bri­an Ca­plan.

“Mr. Grant be­lieves that the rul­ing will help oth­er artists and own­ers of copy­rights de­fend against sim­i­lar in­fringe­ment,” Ca­plan said.

“This is a com­plete vic­to­ry for Plain­tiffs as to li­a­bil­i­ty. Plain­tiffs will be seek­ing at­tor­ney’s fees in the sub­se­quent dam­ages phase,” he added.

It re­mained un­clear if the par­ties would agree to dam­ages among them­selves or go to tri­al and let a ju­ry pick a num­ber.

“There will ei­ther be a tri­al just on dam­ages, as­sumed­ly be­fore a ju­ry, or we could agree to a num­ber with­out a tri­al,” Van Ben­thy­sen said.

Grant’s law­suit de­mand­ed that Trump pay him US$300,000, al­though that could rise if the for­mer pres­i­dent must al­so pay the thou­sands of dol­lars in le­gal fees the artist has spent dur­ing four years of lit­i­ga­tion.

Both Ed­dy Grant and Trump were forced by sub­poe­na to give du­elling de­po­si­tions in the case, and for­mer Trump ad­vis­er Dan Scav­i­no was al­so de­posed.

Grant sued Trump in 2020, over a cam­paign tweet — a 55-sec­ond an­i­ma­tion that showed then-pres­i­den­tial can­di­date Joe Biden fee­bly put­ter­ing along a rail­road track in a push­cart while a high-speed “Trump-Pence” train zoomed past.

About 40 sec­onds of “Elec­tric Av­enue” plays as part of the sound­track.

In sum­ma­riz­ing the his­to­ry of the case in his de­ci­sion, US Dis­trict Judge John G. Koeltl re­vealed that it was Scav­i­no — Trump’s di­rec­tor of so­cial me­dia and deputy chief of staff for com­mu­ni­ca­tions at the time — who up­loaded the video to Trump’s per­son­al Twit­ter ac­count on Au­gust 12, 2020.

“Scav­i­no tes­ti­fied that he saw the video on a Trump sup­port­er’s so­cial me­dia page ei­ther on the same day or the day be­fore he post­ed the tweet,” the judge wrote Fri­day.

“Scav­i­no al­so tes­ti­fied that he spoke with for­mer Pres­i­dent Trump be­fore post­ing the tweet and that for­mer Pres­i­dent Trump ‘let [him] go with [his] in­stinct on it and post it’,” the judge wrote.

The video was viewed more than 13.7 mil­lion times, was liked more than 350,000 times, and was retweet­ed more than 139,000 times.

Grant’s lawyers im­me­di­ate­ly sent Trump’s lawyers a cease-and-de­sist let­ter, but it wasn’t un­til Grant sued on Sep­tem­ber 1, 2020, that the video was tak­en down.

The Busi­ness in­sid­er re­port­ed that in re­ject­ing Trump’s claim that Grant had nev­er prop­er­ly se­cured a copy­right for the Elec­tric Av­enue sound record­ing, the judge said it was enough that Grant held the copy­right for a com­pi­la­tion record that in­clud­ed the song.

De­ci­sions in mul­ti­ple pri­or le­gal cas­es sup­port that find­ing, the judge said.

Trump, mean­while, was un­able to cite a sin­gle sup­port­ing case, the judge said.

And in re­ject­ing Trump’s claim that the an­i­ma­tion was a “fair use” of the song, the judge went me­thod­i­cal­ly in his de­ci­sion through the four-fac­tor stan­dard for fair-use ex­emp­tions to copy­right.

The first fac­tor looks at how the copy­right­ed work was used.

“In Trump’s case, Elec­tric Av­enue was used for a com­mer­cial pur­pose, not for an al­low­able non-prof­it, re­search, or ed­u­ca­tion­al pur­pose,” the judge wrote.

The sec­ond fac­tor looks at whether the copy­right­ed work was “cre­ative” or “fac­tu­al”.

“It is clear that Elec­tric Av­enue is a cre­ative work and there­fore is clos­er to the core of copy­right pro­tec­tion,” the judge wrote.

The third fac­tor weighs how much of the copy­right­ed work was tak­en for an unau­tho­rized use. Here the judge found that “the song plays for the ma­jor­i­ty of the an­i­ma­tion; the ex­cerpt is of cen­tral im­por­tance.”

The fi­nal fac­tor asks “whether, if the chal­lenged use be­comes wide­spread, it will ad­verse­ly af­fect the po­ten­tial mar­ket for the copy­right­ed work,” the judge wrote.

“In this case, there is no pub­lic ben­e­fit as a re­sult of the de­fen­dants’ use of ‘Elec­tric Av­enue’,” the judge wrote.

“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’.”

The judge not­ed that the dam­age to Grant could be sig­nif­i­cant if the copy­right to his songs was not strict­ly en­forced.

“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 judge wrote.

An at­tor­ney for Trump did not im­me­di­ate­ly re­turn a re­quest for com­ment from the pub­li­ca­tion. —NEW YORK (CMC)