McCain fights back against Jackson Browne lawsuit with fair use doctrine

December 2008

Music publishing

Senator John McCain, the loser in the US presidential campaign, is planning on fighting a lawsuit launched by singer songwriter Jackson Browne over the use of one of his songs in a McCain campaign ad. Quite a number of artists objected to their songs being used at Republican rallies in the run up to America’s election although the Republicans pointed out that recorded music played at events – even political events – is covered by blanket licences if the venue has these (the equivalent to PRS and PPL licences in the UK).  Browne’s 1978 song ‘Running On Empty’, however, was used in an advert, so. However, with only a few words used from the song, McCain’s lawyers are claiming that – while they didn’t clear the use of the track with Browne – it is covered by the fair use exemptions in US copyright law. His defence cites four fair use exemptions – that fact the song was used for non-commercial purposes, the fact the words that were used from the song (it’s title line) are an acknowledged cliché, that only a tiny portion of the song was used, and that its use won’t have damaged Browne commercially (in fact, they argue, it probably added a boost to sales of the song) with court papers reading “Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song …. these claims are barred by the fair use doctrine.”.  McCain’s lawyers also reject claims the use of the song breaches US “false association or endorsement” laws because, they argue, those laws only cover commercial rather than political association. MCain is also arguing the Browne’s action is a bid to stop free speech. If such a motion is successful the plaintiff can find themselves having to pay the defendant’s legal costs and potentially damages.  CMU Daily said “ If all of this gets to court, it could be an interesting case. Many artists (including UK artists, the situation is the same over here) are already pissed off that blanket licencing arrangements allow politicians to use their music at rallies and conventions – fearing that by having their music featured at a political party’s event the public may assume they somehow endorse said party. If, under fair use exemptions, politicians can legitimately use bits of recognisable music without an artist’s permission in adverts, and if said artists risk being accused of being anti-free speech if they sue, that could cause quite a bit of outrage among more politically motivated pop stars .”

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