The Am Law Daily has an interview with Lawrence Iser of the Santa Monica-based law firm Kinsella, Weitzman, Iser, Kump & Aldisert, which is representing Jackson Browne in his lawsuit against Senator John McCain’s campaign, the Republican National Committee, and the Ohio Republican Party over their use of Jackson’s song “Running on Empty” in a television ad attacking Senator Barack Obama. There is a lot of great information, as well as a PDF of Jackson Browne’s complaint at the bottom of the interview. More at the link, but here are some highlights:
[The Ohio Republican Party] stopped broadcasting [the ad] and took it off of YouTube, but The Huffington Post had already picked it up and it had run on CNBC. So it was getting national exposure. And rather than call me to discuss compensation for the use of the copyrighted composition, they issued a statement to the press that said something along the lines of, “We don’t know why Jackson Browne is upset, we’ve given him more airtime than he’s had in years.” A year or two ago, Jackson was inducted into the Rock and Roll Hall of Fame, and his last album was nominated for a Grammy Award, so as you can imagine, this upset us a great deal.
No one reached out to Jackson and his publisher, nor did anyone reach out to the record company, which owns the master recording that they used. If you use a song in a commercial, you actually need two licenses: a synchronization license for the composition of the song itself from Jackson’s publisher, and a master use license from whoever owns the sound recording on Jackson’s record.
To our knowledge they did not get a license from the record company, but [Rhino Records is] not part of the suit and we’re not suing for use of the sound recording, only the use of the musical composition. We’re also suing for having Jackson’s voice in the commercial under California’s right of publicity, and under the Lanham Act for the implied false endorsement of John McCain by associating himself with Jackson Browne. Jackson is a well-known political voice.
[W]hat some artists are complaining about here is more than just publishing, it’s the implied endorsement. They don’t want their song, talent, or persona associated with Republicans. And that’s why the Lanham Act exists, because of that false endorsement. Nobody has decided to take on the Republicans other than Jackson at this point. They could, but musicians by nature are not litigious.
We tried and offered them the opportunity to try and work out the financial end of this but they just blew us off. And that’s why we have patent and copyright law, it derives from the right in the Constitution to profit from your living. If you use Jackson’s song in a commercial, he deserves to get compensated. So we have a very valid claim here.
Most of these cases settle but if you go to trial, it’s usually within 16-18 months after filing. The one potential complication is if Senator McCain is elected president. If so, I foresee some possible problems in getting discovery. But I don’t think the case would be stayed if he’s a sitting president because these are not acts that occurred while he was president. So we should still be entitled to proceed if he wins the election.
[W]e’ve given them an extension of time to retain counsel and all three of their responses are due around October 23.