In response to the lawsuit Trump argued that his use of the song was copyright fair use.
“The purpose of the Animation is not to disseminate the Song or to supplant sales of the original Song,” stated a motion to dismiss. “Here, a reasonable observer would perceive that the Animation uses the Song for a comedic, political purpose — a different and transformed purpose from that of the original Song.”
New York federal judge John Koeltl ruled on the case today in favor of Grant, characterizing the ad as “wholesale copying of music to accompany a political campaign ad.”
Trump’s argument “misapprehends the focus of the transformative use inquiry,” he writes. “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.”
Koeltl called on the precedent set by a recent appellate decision over Andy Warhol art that provides guidance that “where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use,’ is insufficient to render a work transformative.”
