Jackson Browne's Lawsuit Against RNC and Sen. McCain Not "Running on Empty"
A few months before the (seemingly never ending) 2008 presidential election, singer/songwriter Jackson Browne sued then-Republican Presidential candidate Senator John McCain, the Republican National Committee and the Ohio Republican Party in connection with the use of portions of Browne's composition, Running on Empty, in a campaign commercial for Senator McCain.
Problem is (at least as Browne saw it) that none of these defendants obtained a license or Browne's permission to use the composition in the commercial. Instead, according to the Court, the Ohio Republican Party purchased the composition from iTunes to use in the commercial. The use of the composition did not sit well with Browne as he contended that the commercial falsely suggested that he sponsored, endorsed or was associated with Senator McCain and the Republican Party when, as his complaint put it, "nothing could be further from the truth." To the contrary, although the Ohio Republican Party principals apparently were ignorant of the fact that Browne was politically active, Browne's public support for the Democratic Party and then-Presidential candidate Barack Obama was well known.
Browne thus sued the defendants in the Central District of California asserting copyright infringement, vicarious copyright infringement, false association or endorsement under the Lanham Act, and violation of California's common law right of publicity. The RNC and Senator McCain responded with a motion to dismiss the first three claims for failure to state a claim as well as a motion to strike the right of publicity claim under California's Anti-SLAPP statute. The defendants struck out on both motions.
Essentially, although couched in a variety of ways, the RNC's and Senator McCain's arguments boiled down to an assertion that Browne's claims failed as a matter of law because political speech/expression was involved.
Thus, they argued that the fair use doctrine barred, as a matter of law, Browne's copyright infringement claims; the Court disagreed, concluding that it could not make a fair use determination at this stage of the proceeding and specifically noting that the "mere fact" that the copyright claim was based on use of a copyrighted work in a political campaign did not bar Browne's claim as a matter of law.
And the RNC and Senator McCain argued that Browne's false association/endorsement claim under the Lanham Act failed because (1) the Act applies only to commercial speech and does not apply to political speech, (2) the commercial was an expressive work and therefore the claim was barred under the First Amendment and the Rogers artistic relevance test, and (3) there was no likelihood of confusion because the Ohio Republican Party was clearly identified as the source of the commercial. The Court readily rejected the defendants' first premise, concluded that defendants had not established that the First Amendment and the artistic relevance test barred Browne's claim particularly at this stage of the proceeding, and found that the identification of the source of the commercial did not preclude the possibility of confusion as to whether Browne endorsed Senator McCain, the RNC or the Ohio Republican Party.
Similarly, with respect to the RNC's and Senator McCain's Anti-SLAPP motion to strike, although the Court found that the defendants had established the first element--that Browne's right of publicity claim arose from protected activity because it involves an issue of public interest, specifically, the 2008 presidential election and the candidates' energy policies--Browne met his resulting burden of showing a probability of prevailing on his claim, which the Court interpreted to mean a "mere possibility" of success.
The Court's order denying the RNC's motion to dismiss can be found here (PDF, 7 pages). The Court's order denying the RNC's special motion to strike can be found here (PDF, 9 pages).
