McCain fried? Campaigning senator upsets Paris and Jackson

September 2008

Music publishing, record labels, artists

First US presidential candidate Senator John McCain liked Barak Obama’s cultural appeal to Paris Hilton, and Hilton hit back with a rather amusing and somewhat damaging video which mocked the ‘white haired dude’ and rather put McCain on the back foot. Now Jackson Browne’s management have taken action over the use of one of his iconic songs, “Running On Empty” in one of the Senator’s ads. When Browne’s management began receiving emails from people who wondered why the legendary singer and songwriter – an Obama supporter who doesn’t allow his songs to be used in advertisements of any kind – would allow “Running on Empty” to play in a John McCain campaign commercial – they decided to investigate. It turns out Jackson never granted permission for any such use and according to a lawsuit in US District Court in Los Angeles, the Ohio and National Republican Parties and McCain himself are responsible for two illegal actions by infringing Browne’s copyright and creating the false impression that Browne had endorsed John McCain. Browne’s lawyer Larry Iser said “When you’re a senator, or you’re elected president, you take an oath to preserve, protect, and defend the Constitution of the United States” asdding “Copyright derives directly from the Constitution… Someone who is running for president needs to set a good example in adherence to the laws” and further added that McCain, the Republican National Party and the Ohio Republican Party should pay damages in excess of $1 million. There is no compulsory right for music synchronisation in the US and each criminal act of copyright infringement warrants statutory damages of $150,000. Iser added that ordinary Americans who have been somewhat browbeaten over issues of copyright infringement deserve an apology. It will be interesting to see if the record labels and music publishers come out in support of this position!. The claim under personality (image) rights is more interesting – the complaint claims (under the Lanham Act apparently ) that “because ‘Running on Empty’ is so famously associated with Jackson Browne his identity has been appropriated without permission and according to Iser “they’ve put it in a commercial in a way that says that Jackson Browne is supporting senator McCain.” In addition, Browne does not allow his music to be use in advertisements, which could drive up the value (or associated damages) of his association with a product – in this case, John McCain. Tom Waits successfully sued Frito Lay and its advertising agency in 1992 for $2.5 million, in a false endorsement case upheld by the Ninth Circuit Court of Appeals. And several other artists including John Mellancamp have complained about their songs being appropriated by politicians with whom they do not agree. From an article by Eliot van Buskirk

For US, UK, European, Canadian and Australian image rights see “The Right Image” by Ben Challis on this site (Articles).

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