The Sourthern District of New York has held that the use of Eddy Grant's song, Electric Avenue, in a 55-second campaign video for President Trump in 2020 was infringement and not fair use. Grant v. Trump, No. 1:20-cv-07103-JGK, 2024 WL 4179057 (S.D.N.Y. Sept. 13, 2024). Grant's song was played over most of the Video.  

Trump argued that the Video “transformed Grant's original conception of Electric Avenue as a protest against social conditions into a colorful attack on the character and personality traits of a rival political figure.” 

The court, however, noted that “the defendants' argument misapprehends the focus of the transformative use inquiry.” 

“While it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation's use of Grant's song.” Id. “[T]he video's overarching political purpose does not automatically render its use of any non-political work transformative.” Id. at 285 (citing Henley v. DeVore, 733 F. Supp. 2d 1144, 1164 (C.D. Cal. 2010); Browne v. McCain, 612 F. Supp. 2d 1125, 1129-31 (C.D. Cal. 2009)). In Andy Warhol Foundation, the Supreme Court “rejected the idea that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.” 598 U.S. at 543. To so hold “would swallow the copyright owner's exclusive right to prepare derivative works.” Id. at 541. 

The Court also held that “the Video has a very low degree of 'transformativeness,' if any at all”--noting that the Video “is best described as a wholesale copying of music to accompany a political campaign ad.” The Video does not alter the Electric Avenue song or use Electric Avenue as a vehicle to deliver its satirical message, and “makes no effort to poke fun at the song or Grant.” The Court concluded that the Trump defendants “have offered no justification for their extensive borrowing.” 

Accordingly, Grant's motion for summary judgment dismissing Trump's fair-use defense was granted, and the Court held that Grant was entitled to judgment on liability for copyright infringement. 

Professor Goldman suggested  that "one might have wanted the court to be a little more forgiving on the transformativeness argument given the political context, but the Warhol case largely discourages such grace."