Trump loses 'Electric Avenue' lawsuit as judge finds he has zero defense for tweeting the song

• A federal judge in Manhattan found Trump liable for damages in the "Electric Avenue" copyright case.
• Trump has zero defense for a 2020 tweet that included 40 seconds of the dance hit, the judge found.
• Now all that remains is for damages to be set, either with or without a jury's help.

A federal judge in Manhattan has found former president Donald Trump liable for damages in a hotly-contested copyright battle over Eddy Grant's '80s dance hit "Electric Avenue."

In a 30-page decision, the judge on Friday delivered a one-two blow that essentially ends the case pretrial, with nothing now left to determine but damages.

In the first legal blow, the judge found that the song was properly copyrighted. And in the second blow, 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 attorney Brett Van Benthysen told 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 Friday night 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 $300,000, though 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 dueling depositions in the case, and former Trump adviser Dan Scavino was also deposed.

Grant had sued Trump in 2020, over a campaign tweet — a crudely-drawn, 55-second animation that showed then-presidential candidate Joe Biden feebly puttering along a railroad track in a push cart 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, the judge wrote.

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.

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.'"

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

"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.