Celebrity gossiper TMZ.com has an update on Jackson Browne’s lawsuit against Senator John McCain’s unauthorized use of “Running on Empty” for a campaign ad. The brief article includes a link to a PDF of a filing of a Motion to Dismiss the case. The 53-page document was filed on Monday, November 17, by the lawyers representing the defendants McCain, the Republican National Committee and the Ohio Republican Party.
Their argument essentially boils down to several points: their use of the song was for a non-commercial message about matters of public interest, and essentially is protected by the First Amendment of the US Constitution and the fair use doctrine. The Lanham Act that Jackson’s lawsuit cited is also dismissed; it claims that the Lanham Act does not apply to public speech, but only to commercial speech.
There’s also a description of the ad:
The Political Video is one minute and twenty seconds long and starts with clips of Ohio television news reporters discussing high gasoline prices. One reporter asks “How do you bring down the price of gas here in northeast Ohio and across the U.S.A.?” and the Political Video cuts to Obama saying at a rally “making sure your tires are properly inflated.” The sound of a needle scratching an album is heard as the screen flashes the word “What!?!” Information is shown about McCain’s energy plans and McCain is shown speaking at a rally and stating that low-income Americans are bearing the brunt of a failed energy policy. A screen then poses the question: “What’s that Obama plan again?” At this point, 50 seconds into the Political Video, music (but no lyrics) from the Song is first heard in the background. Obama is shown stating that “we can save all the oil they’re talking about getting off drilling if everyone was just inflating their tires.” Senator Hillary Clinton is then shown saying (at a press conference during a time when she was also a presidential candidate), “Shame on you, Barack Obama!” A picture of Obama then appears next to the caption “Barack Obama: No Solutions” and the words “No Solutions” change to “Not Ready to Lead.” This screen with the picture and words appears at 1:11 of the Political Video, and at this point the sound of Browne singing the lyrics “running on empty” along with a few other words that bracket that phrase in the Song can be heard. The Political Video ends with a screen stating as follows: “Paid for by the Ohio Republican Party. http://www.ohiogop.org. Not authorized by any candidate or candidate committee.” Thus, Browne’s voice (i.e., Browne singing the Song) is heard for nine seconds at the end of the Political Video.
The document itself is filled with dismissive and insulting asides, like calling the portion of the song used as cliché and “not particularly creative”. The latter statement is made in the context of a legal argument in regard to precendents set by previous cases, but still stings. They even go so far as to say that the only noticeable effect the ad likely had was to increase popularity of the song.
In fact, if the use of the Song in the Political Video will have any effect, it will likely increase the popularity of this thirty year-old Song when those watching the Political Video will be reminded of it and go out and purchase it.
Later in the document, as part of the Motion to Strike filing, the document states:
Browne then leveraged the attention and notoriety generated by filing an action against a candidate for President of the United States to enable Browne to hit the “campaign” trail as well – the campaign to promote Browne and his new album Time The Conqueror. Since filing this action, Browne has appeared on numerous television programs (including “The Colbert Report” and “The Tonight Show with Jay Leno”) and has given numerous interviews, discussing both this lawsuit and his new album.
Also unfortunate is the defendants’ citing of Lennon vs. Premise Media Corp., a recent lawsuit over the use of John Lennon’s song “Imagine” in the movie Expelled: No Intelligence Allowed, that was not found in favor of Yoko.
(Incidentally, the motion also cites a previous lawsuit from 1984, which dealt with a canceled Jackson Browne concert (and several other shows) during a 1977-1978 concert series in Burbank. Jackson was not directly involved in that lawsuit, but the court did find in favor of the concert organizer.)
I’m not a lawyer, so I can’t really provide much more commentary except to say that, from what I understand, a motion to dismiss is usually the response defendants make, in hoping that the case will be thrown out and they won’t have to proceed to an actual trial. The next step is to see if it gets dismissed.