The suit, filed by attorney Brian Caplan of Reitler Kailas & Rosenblatt LLC in U.S. District Court in the Southern District of New York on Tuesday morning, came after Caplan tells Billboard another attorney for Grant, Wallace Collins III, sent a cease and desist letter to the president's attorney asking that the 55-second video denigrating Biden be taken down the day after the clip was posted.
"You need to get a synchronization license when you sync music to video," says Caplan, noting that Grant owns the master recording and was not asked for permission to use the song, which the suit stresses has a "valid and subsisting" copyright.
"Defendants have infringed and continue to infringe Plaintiffs’ copyrights in the Composition and the Recording by creating, producing, distribution, promoting, advertising, performing by means of digital audiovisual transmission, and otherwise commercially exploiting the Infringing Video, and/or authorizing others to do the same, without Plaintiffs’ authority or consent," reads the lawsuit.
Unlike threats of action and complaints from artists including the Rolling Stones, Elton John and Guns 'N Roses' Axl Rose about Trump playing their songs at his campaign rallies, which those artists could claim amounts to a "false endorsement," Caplan says Grant's action was filed under a different banner.
"That theory is that when you play a song by Neil Young, that gives anybody at the rally or anyone covering it the false impression that Neil Young endorsed Trump's campaign," he says. "That's not a copyright infringement case. Caplan is adamant that the Trump campaign will not have a viable fair use defense in this case. Young did actually sue the Trump campaign in early August for copyright infringement, citing unauthorized use of his songs "Rockin' in the Free World" and "Devil's Sidewalk" for what he termed "a divisive, un-American campaign of ignorance and hate."
In his research about the claims against Trump's unsanctioned use of music at his events, Caplan says he has not seen a case like the one he has brought on Grant's behalf, which also names the singer's Green Heart Music Limited publishing company as a plaintiff. "This is copyright 101," he says. "You need to have a license and nobody in his campaign with a straight face could say he has the absolute right to do this."
The suit demanding a jury trial seeks the disgorgement of profits, the payment of reasonable licensing fees and statutory damages, as well as a takedown of the video -- which at press time was still up -- and injunctive relief. And while the ultimate goal is to have the video taken down, that "cow is out of the barn," and the damage has already been done, according to Caplan, considering the clip has been up for several weeks and has racked up more than 352,000 likes and 95,000 retweets to date on the President's account, which has more than 85 million followers.
"Neither the President nor [Donald Trump For President Inc.] is above the law," the suit states, with Caplan noting that he sent a cease and desist order to Trump's legal team the day after the video went up, with no response to the request to date.
The action notes that "numerous comments" on the Aug. 12 tweet linked to "articles reporting on the infringement." The claims in the suit include two counts of copyright infringement, with a judgement demand of actual damages of up to $150,000, a permanent injunction, impounding/destruction of all copies of the video and attorney's fees.
"Eddy stands for peace and justice and this ad is not consistent with the ideals Eddy has stood for and sung about for years," says Caplan. A spokesperson for the Trump campaign could not be reached for comment at press time.
See the infringing ad and original "Electric Avenue" video below.