Scott Olson/Getty Images, left. Tom Curtis/Getty Images, right.
Lawyers for former President Donald Trump and music icon Eddy Grant appeared in federal court in Manhattan Friday to argue an esoteric question: When is a copyright not a copyright?
Grant's lawyers say Trump infringed on the copyright for "Electric Avenue" by including 40 seconds of the '80s dance hit in an August 2020 campaign tweet.
But Trump's lawyers are fighting Grant's 2020 lawsuit by claiming that while the singer-composer holds the copyright for a "greatest hits" album that includes Electric Avenue, he neglected to protect the sound recording for the song itself.
The compilation album's copyright only protects the greatest-hits recording in its entirety, as one whole thing, Trump attorney Jesse Binnall told the judge Friday.
"The bootstrapping they're trying to do here is just something that can't be done," Binnall complained.
To which US District Court Judge John G. Koeltl replied, well, why can't it?
"An integral part of that compilation was the performance of Electric Avenue," the judge noted. So why wouldn't the compilation copyright cover that song, he asked.
"I don't see the cases out there that say 'You can't do this,'" the judge told Trump's lawyer, who stood at a podium, paging in vain through a large three-ring-binder to find such a case.
On the contrary, there's a clear federal caselaw that "goes the other way," as the judge put it, referring to a 1998 Manhattan dispute between two companies that made laminated street maps.
"The copyright owner has the right to sue for infringement of a portion of that copyright," a lawyer for Grant, Robert Clarida, agreed during his own turn at the podium on Friday.
Trump's lawyer did try some high-level name-dropping. He mentioned compilation albums by Bob Dylan and Taylor Swift.
Electric Avenue was originally recorded before it was released on the Greatest Hits album.
Trump's lawyer argued that the individual songs in Dylan's "The Basement Tapes" and Swift's "Taylor's Version" compilations were wholly new works, and as such, they are protected by their albums' copyrights.
"If Eddy Grant had gone into the studio and rerecorded Electric Avenue, that would have been different," he said.
Koeltl did not say when he'll decide if Grant's claim Trump violated the sound-recording copyright.
If the judge sides with Trump, a slimmed-down case would survive. If he sides with Grant, the whole case would survive.
But a separate issue with an even stronger bearing on the outcome was also argued Friday: was Trump's use of "Electric Avenue" allowable because it transformed the song enough to turn it into something else, a new work not covered by even a disputed copyright?
Here, too, the judge expressed skepticism, noting from the bench that he'd previously rejected Trump's side's claim that the tweet transformed the song.
"I will take the matter under advisement," the judge told the lawyers, ending the hearing without setting a decision date. A trial date has not been set and Grant is seeking $300,000 in damages.
