Fri, Nov 21 2008 2:23 AM aheram

Jackson Browne v. Ohio GOP and John McCain

Last August, the Ohio Republican Party released a campaign commercial in support of Senator John McCain's campaign for the presidency. One of the music used in the campaign commercial in a thirty-second snippet is Jackson Browne's song Running on Empty. According to Browne, a supporter of President-Elect Barrack Obama, it gave an impression that he has endorsed Senator McCain. In a lawsuit filed by Browne, Senator McCain and the Ohio Republican Party has infringed on his copyright and gave the false impression that he has endorsed the senator.

In an interview with Wired.com, Browne's attorney Larry Iser said, "Copyright derives directly from the Constitution… Someone who is running for president needs to set a good example in adherence to the laws."

The McCain campaign responded, "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."

Not only are creativity and innovation threatened by spurious copyright-driven lawsuits like Browne's, but as we can see political speech as well. Limitations to copyright are codified in Title 17, Section 107 of the US Code, also known as the Fair Use Doctrine, allows people to create deritatives of copyrighted works without the copyright holder's consent. In a similar case, Keep Thomson Governor Comm. v. Citizens for Gallen Comm., the courts has ruled that the opposition group's use of fifteen seconds of another group's campaign music is fair usage and therefore non-infringing. Thousands of campaign videos have been produced by supporters of President-Elect Obama and Senator McCain using copyrighted music for great effect and then published on YouTube; all under fair use protections.

Browne's lawsuit will have a chilling effect on future political speech, especially his claim that Senator McCain's campaign misrepresented his views. Must fair users now take into account an artist's political beliefs when creating derivatives of their work? How reasonable is it to expect fair users to divine an artists' political belief?

The delicious irony of this is that Senator McCain has voted for increase copyright protections to detriment of fair use, the same fair use he is now invoking to defend himself against Browne's infringement claims.

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# re: Jackson Browne v. Ohio GOP and John McCain

Tuesday, November 25, 2008 11:16 PM by TokyoTom

Thanks for this information.  It sounds like Browne's action is a good opportunity to clarify the application of copyright to use by political candidates - and that the McCain defense is not a slam dunk.

Of course, your use of "chilling effect" is totally inapropos, as Brwone is not a public entity, but merely a private person seeking to enforce what he considers (perhaps mistakenly) to be his rights.

TokyoTom