John McCain Cites Yoko Ono (and Fair Use) In Defending 'Running on Empty' Case

By Eriq Gardner

John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to singer Jackson Browne.

Browne sued McCain in August after the Republican candidate for the highest office in the land used his song, "Running on Empty," in a campaign commercial that targeted Obama's energy plan. At the time, many didn't take the legal threat very seriously, but based on two motions filed this week in U.S. District Court in California, the McCain campaign sure does.

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 non-commercial 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 even cites a recent Yoko Ono case); 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 thirty year-old song").

McCain also says that 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 fililng is maybe even more interesting. It's an anti-SLAPP motion, which is 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.

Comments

[Bill R]

Free speech ain't free when the intent is to enslave.

[Paul]

Does McCain support the free speech/fair use point of view against the recent overreaching intellectual property claims of the recording industry? It would be interesting to see his voting record on it.

[Dan]

It is common decency to ask an artist--before using it--for permission to use a creation of the artist. Is this another case of ramming down our throats another opinion that we don't agree with?

[Karen]

True enough, it's only polite to ask an artist's permission before using his created work for your own purposes....

So, why didn't McCain use something Hank Williams Jr. "created", I'm sure HW Jr. would have been ecstatic that Sarah Palin's running mate gave him props.

When I saw HW Jr. serving as the opening act for one of Palin's riot/rallies a month ago, I felt strongly enough about their "act" that I threw away my one and only HW Jr. "music" CD.

[E.C.McCready]

When I used John Lennon's "Imagine" in
http:digitalperiodical.com/v.pdf

CSI:CRIME SCENE INVESTIGATION "Voodoo Child," which by the way that episode is named off of Hendrix's "Voodoo Child," I realized that I might of missed the never get to sell a tv spec. Well, it's important to try, and I would ask or pay or both, so there!

For me, Yoko and John, this was my ideal relationship. I used to live in Hollywood, gettin' on the fret-board with rosie as I say, and then I'd "skip to my lou," backwards - complete mastery. Some-one asked me then, how do you feel, and I said "I feel like God."

I even used to go to Lennon's star and pull chi off it on Hollywood Blvd. Man I was trippin'.

Should I ask God if I can feel her up?

E. Charles McCready

[Thomas]

This is a case of Browne's voice being "hijacked" to support a war criminal he [hopefully] abhors! A sort of abduction of his political beliefs to be used to elect McCain against Browne's will..Rape!

YES....Thats it....Artistic...RAPE.....of..an.. artist....by a WAR CRIMINAL?? Who was McCain bombing when shot down?? Was it women and children, or was it a military target.....Its telling that the locals got hold of him after the crash and roughed him up...Check out what he did to his first wife too...... She waited for him those years..... and he DUMPED her for A trophy model....

[Anthony Look]

Republicans for too many campaigns have been callously using calculated artists songs (without legal permission)to impact a certain target; usually a younger target. This tactic will not go unnoticed. The disregard to continue this practice has to be stopped.
Their arguments are flawed and I applaud Browne for finally bringing this issue to the forefront and hopefully a successful conclusion.

[john hawk]

McCain is a lost soul striving for nothingness, whereas Hank W was probably hoping for a piece of Palin-ass...