John McCain fights back against Jackson Browne

[meegbear]

Source: Reuters/Hollywood Reporter

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

The singer/songwriter 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 cites a recent judgment against Yoko Ono, who had sought to prevent the unauthorized use of John Lennon's "Imagine" in a film); 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").

<snip>

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.

Read more: http://www.comcast.net/articles/music/20081120/ENTERTAI... /

[Lerkfish]

1. wow, the assholery boggles the mind.

[Justyce]

2. Increase the popularity of the song? I think Jackson Browne would

have a good argument that being associated with John McCain would do ANYTHING but increase his popularity...

[John Kerry VonErich]

3. We need better artists' rights protection.

Yes, it might give Browne a new audience, but he truly believes in his dignity and morals.

[Aristus]

4. Based on his defense, he could have accomplished everything he wanted without using the song itself.

The fact that he did anyway eliminates the "fair use" defense.

Idiot.

[msongs]

5. uses the song in a negative light and associates with the loser - mccain nt

[TlalocW]

6. There was a discussion on this

On a Family Guy episode commentary of all things. With the number of things they reference in their cutaways, a lot of the time they have to get permission from the artist or the company that owns a song/character/etc. they want to use, and while a lot of them are perfectly happy to let them use the artist's property for free (George Lucas is very open to the references they make), others are big sticklers about it and want to get paid - oftentimes more than what the show can afford. McFarlane understands that artists/companies have the right to do it, but at the same time, he jokingly talked about some examples of people who haven't been in the public eye for years or decades, and how they could benefit thanks to a Family Guy reference, which has happened before - for example, after the show did a version of the song, "Shipoopi," from the musical, "The Music Man," it was the most Googled word the next day.

TlalocW

[customerserviceguy]

8. The Supreme Court made a fair use exception for parody

in Campbell v. Acuff-Rose Music, Inc. (1994). Family Guy would almost certainly come under that standard, but would political speech be afforded more or less protection than parody?

[Kelvin Mace]

13. I would argue less

The songs are chosen to convey a political point, using the work of people who may very much disagree with the appearance of endorsing the view or candidate. Most people understand that parody use of a character or song is not an endorsement (and since parody "distorts" the representation the viewer is unlikely to confuse the parody with the real McCoy). In this particular ad the song is used in it's original form, which can confuse the viewer into believing the artist sanctions the message/candidate.

That said, *if* you pulled a Weird Al, and used the music, but changed the lyrics, you would have a defensible parody case, especially if only a snippet of the song was used.

David "not a lawyer, but a publisher who dealt with a few threats of this type without losing" Allen

[liberal N proud]

7. McCain campaign used the song with out permission - - END OF DISCUSSION

This is bullshit how they used songs from artist as they pleased one after another as if they were free domain.

[benld74]

9. Lets all root for JAckson to WIN, and WIN BIG!

[olddad56]

11. Jackson Browne is my hero, he will kick McCain's ass.

[tanyev]

10. Why would he even want to use "Running on Empty" for his campaign?

It's appropriate, but probably not in the way they intended.

[Divine Discontent]

16. exactly, ha, it ties the song to the LOSER, though and they didn't get the approval to do so. eom

[superconnected]

17. ahahhahaha rofl, now that was funny!

[cureautismnow]

12. McSame is The Pretender. n/t

[izquierdista]

14. It's old, old, old.....

but only half as much as old, old, old, old, old, old McCain. :cryptkeepersmilie:

[superconnected]

18. yes, but lets not spread agism. I don't like Mccain but I didn't like the age-ist attacks on him.

An 85 year old could make a great president if he/she had the mental acumen. Not all old people suffer from alzheimers. Some stay very lucid and are quick with intelligence and useful experience.

[Nambe]

15. JB is certainly not a greedy person.

We saw him at a benefit concert in New Zealand a few years ago. He was not on tour in the South Pacific and his expenses must have been substantial. His wife danced with our friends four year old daughter and talked with us for a while. Nice people.