Jackson Browne’s attorneys posted on their blog an update on the status of this potentially historic case. (In case you forgot or weren’t following this, Jackson’s song “Running On Empty” was used for an anti-Obama commercial in Ohio and online by the Republican Party during Senator John McCain’s campaign for President. Jackson sued for the unauthorized use, and McCain countered with a lengthy request for the case to be dismissed.)
On January 7, Jackson’s attorneys filed a series of oppositions in response to McCain’s motion for dismissal. They essentially claim that Jackson can prove a violation of his rights of publicity, and countering the claim that the ad’s use of the song is defended by the Fair Use Doctrine and the Lanham Act.
On January 21, McCain’s attorneys filed two responses to these claims, according to THR, Esq. According to that site:
Browne’s concession that McCain used a snippet of the song “as part of a political message” that “criticize[d] President-elect Obama’s energy policy” is an acknowledgment of the political nature of the use. McCain’s lawyers believe this to be important because it would factor largely into the court’s fair use analysis. Previously, Browne pointed to case law that demonstrated not every use of copyrighted material in political speech to be fair.
The second motion is in support of a anti-SLAPP motion that seeks to punish Browne’s alleged misuse of the judicial system to trample First Amendment speech. McCain’s lawyers accuse Browne’s camp of “ignoringall of the on-point cases” (their boldface, not ours), and says that since they’ve met the first prong of the state’s anti-SLAPP statute — whether the considered speech is a protected one like a public policy message — the burden “shifts to Browne to prove there is a probability he will prevail on the merits of his claim.”
Ben Sheffner reports that “Oral argument is set for Feb. 2 before Federal District Judge R. Gary Klausner in Los Angeles”.