John McCain Battles Jackson Browne in Court

[babylonsister]

http://reporter.blogs.com/thresq/2008/11/john-mccain.html

John McCain Cites Yoko Ono (and Fair Use) In Defending 'Running on Empty' Case

By Eriq Gardner


John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to singer Jackson Browne.

Browne sued McCain in August after the Republican candidate for the highest office in the land used his song, "Running on Empty," in a campaign commercial that targeted Obama's energy plan. At the time, many didn't take the legal threat very seriously, but based on two motions filed this week in U.S. District Court in California, the McCain campaign sure does.

Represented by attorney Lincoln Bandlow at Spillane Shaeffer, McCain has filed two 20-page motions.

What's he arguing?

The first is a standard motion to dismiss, claiming that McCain's use of the song was fair use. The campaign's fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title that's an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase and even cites a recent Yoko Ono case); and the effect of the use of the song (McCain says that rather than damage the song's commercial potential, his use "will likely increase the popularity of this thirty year-old song").

McCain also says that Browne's assertion that the Lanham Act's prohibition on the implication of a "false association or endorsement" fails because it only applies to "commercial speech," not "political speech."

The second filing is maybe even more interesting. It's an anti-SLAPP motion, which is typically used by defendants as a way to seek monetary damages after a plaintiff has subjected a defendant to a lawsuit meant to chill free speech. So far, McCain is only looking for attorney's fees and costs, but claiming an artist has interfered with free speech is quite the poke of an eye in show business.

[JI7]

1. i don't know why someone would want to use music of artists who didn't like them

[babylonsister]

3. Because that campaign was bereft of any original thinking?

:shrug:

[WeDidIt]

2. No way does McCain win

He's an IP thief, cut and dried.

He's no different from people who illegally download song files.

[wtmusic]

4. McCain's got an uphill battle

"The Supreme Court has held that no economic injury need be shown in order to establish standing when an "aesthetic injury" can be found instead.64 The fundamental principle of an "aesthetic injury" is that a harm can denote standing despite being shared by a large group of people.65 Although this type of injury has typically been used to refer to environmental harms, where pollution has threatened to impair the public's ability to enjoy natural beauty, it has become an increasingly flexible standard in recent years.66

If the violation of something deemed aesthetically pleasing is sufficient to cause injury to an individual, then a harm inflicted upon the aesthetic value of a celebrity with massive appeal should qualify as "damage" within the meaning of the Lanham Act.67 For instance, many individuals took offense at witnessing actor Fred Astaire being resurrected from the grave in order to endorse the Dirt Devil vacuum cleaner in an advertisement.68 Since Astaire's surviving relatives did not endorse the advertisement, the public should have an actionable non-economic injury through the interpretation of the Lanham Act advocated in this Note."

http://findarticles.com/p/articles/mi_qa3735/is_200401/ai_n9402039/pg_3?tag=artBody;col1

[onenote]

6. I'm not so sure about that

His fair use case actually has a substantial basis. I'd give him at least a 50/50 shot at prevailing on that argument. And the Lanham Act is aimed at commercial speech and there is a decent argument that political advertising is not what Congress intended to address in the Lanham Act. Frankly, we ought to hope that the Lanham Act is construed narrowly, since a broad application of that Act to politically motivated speech could have a chilling impact on protests against corporate abuses.

[wtmusic]

10. What opinion was McCain's campaign

expressing by playing the song? At issue is the act of playing that particular song -- the general opinions expressed in the song are for copyright purposes irrelevant. This distinction if often confused or overlooked.

"The issue for the court, to oversimplify only slightly, will be whether use of the music as non-commercial, political speech outweighs the commercial aspects of the misappropriation. Is there really any difference between selling cars or toothpaste and selling a candidate? Is the non-permitted use of copyrighted music at a campaign event any more legitimate than the use of, say, balloons and confetti stolen from a party supply vendor?"

http://memestreamblog.wordpress.com/2008/09/06/mccain-doesnt-rock/

[onenote]

11. not convinced

In response to the question posed in the language you cite, i.e., "is there really any difference between selling cars or toothpaste and selling a candidate?" the answer from a legal standpoint is that there decidedly is a difference. There is constitutional distinction between commercial speech and political speech. And the analogy to balloons and confetti is inapposite since there is no such thing as a fair use doctrine for balloons and confetti, but there is for copyrighted works. The 1978 case discussed in the linked blog, the court noted that the work that was copied by the defendant was itself a political ad that contained the musical work in question. But the court did not appear to give this fact any special weight or suggest that if the song itself had been run (as opposed to a part of an ad with the song) that the result would necessarily be different given that the use of 15 seconds of the work by the defendant was non commercial and political in nature and had no adverse impact on the potential market of the copyrighted work.

Again, the courts give greater leeway to political speech than to commercial speech (which is why, in the defamation context, its harder to make out a case for relief if you are a political or public figure than an "avergage joe"). I'd love to see McCain lose, but I think Browne's chance of success in this case is probably less than 50 percent.

[wtmusic]

12. The balloons and confetti were only referenced as property

as a parallel to Browne's music being his intellectual property.

In the 1978 case the fact that the song was part of an ad in fact *made* it political speech. It was a commentary on the use of the song, which is exactly what is absent in McCain's case. What McCain hasn't established is what part of the act of playing the song can be regarded as political speech.

I agree it isn't crystal clear, but I don't see where reinterpreting the word "commerce" in Lanham § 43(a) is a cause for free speech concern. It is about deception, after all, and it could actually make candidates responsible for the verity of their campaign claims. What a treat that would be.

"Any person who, in connection with any goods or services… uses in commerce any word, term, name, symbol, or device…or any false or misleading description …or representation of fact, which is likely to cause confusion … or to deceive as to the affiliation, connection, or association of such person with another person, or as to the… sponsorship, or approval of his/her goods, services, or commercial activities by another person, shall be liable in a civil action by any person who believes that he/she is or is likely to be damaged by such act."

[raysr]

5. Pubs can do anything they

want, God's on their side, just ask 'em!

[KamaAina]

7. McLoser: Running On Empty

:P

[codjh9]

8. Exactly - ironic that McPuke chose a song w/a title that describes the Repubs!!! :^)

[walldude]

9. He seems to be claiming that the song isn't worth anything

it's "old,old,old," and "cliche" So if the song was so old and cliche then why did you use it in the first place?

[LoKnLoD]

13. The McCain camp should have asked

The McCain camp should have asked to use the song first, Jackson would have said no, and the courts would have been spared this waste of their time. Guilty.