The Hollywood Reporter yesterday posted a brief article that breaks down John McCain’s response to Jackson Browne’s lawsuit over the unauthorized use of “Running on Empty” in an Ohio and online campaign ad during the presidential race in August.
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 noncommercial 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 30-year-old song”).
McCain also says 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, 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.
The item is also getting covered in a lot of other press outlets. Wired adds that a hearing is set for December 8.