McCain Responds To Jackson Browne Lawsuit: Here's How Fair Use Works...

from the indeed dept

During the presidential campaign, we noted that singer Jackson Browne had sued the McCain campaign for the use of one of his songs in a commercial. The McCain campaign has filed a response to the lawsuit, first noting that it wasn't the McCain campaign that used the song in an ad, but the Republican Party of Ohio. Second, the campaign points out that the use of the song probably qualifies as fair use:
"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."
Of course, between this and the McCain campaign's attempt to get YouTube to apply different fair use rules to presidential campaign videos, it makes you wonder if Senator McCain will actually try to do something in the Senate to improve copyright law to make fair use more explicit and make it clear that it covers these sorts of actions. Somehow I doubt it.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    joe, Nov 21st, 2008 @ 6:30pm

    Fair Use

    It amazing how some lawyers will twist and turn to avoid truth, reality and established law. Here is a quote from the US Copyright Office at http://www.copyright.gov/fls/fl102.html

    START

    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

    1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    2. the nature of the copyrighted work;

    3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    4. the effect of the use upon the potential market for or value of the copyrighted work.

    The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

    END QUOTE

    Note that Fair Use does not include the unauthorized use of copyrighted material in a partisan political advertisement. Further, it is an outrageously cynical and extra-legal argument that taking someone's property helps revive sales. The decision as to how to promote sales of an old song is the sole right of the person who owns the copyright.

     

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  2.  
    identicon
    Mark Bender, Nov 21st, 2008 @ 7:07pm

    Fair Use

    Dear Joe. I guess this means you paid for all your MP3s?

     

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  3.  
    identicon
    Bunny, Nov 21st, 2008 @ 7:14pm

    Hoping not to set a precedent?

    Is it my imagination or are the campaign lawyers doing all they can to sneak by on a minimalistic argument to avoid setting a precedent? In effect, they are saying "we are special because we are politicians working for the public interest ... and we're so cool that it was transformative."

    The first part isn't very persuasive if you were in that section of the public who, after listening to McCain's campaign arguments then decided that electing that candidate wasn't in the public interest. Also, why should politicians be allowed any special privileges with respect to copyrights? Are they our public servants, or do they think they are a new class of lords?

    Since the rest of the argument looks weak to me, perhaps the transformative claim will be where the sparks will fly. The trouble is that playing a song on a different stage than usual isn't very transformative just because the purpose is political. If you uploaded some metallica song for political reasons, I think the RIAA would still come after you, so how is this different?

    What they did is likely legal and will probably win, but they're not breaking much of a sweat with that argument, almost like they're kissing the feet of the content-control crowd. On the other hand (equal time?), Obama just named Daschle to join his cabinet... I just hope he's not a bad influence and there's something to keep that #1 RIAA voting record type real busy doing something completely unrelated.

     

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  4.  
    identicon
    joe, Nov 21st, 2008 @ 8:11pm

    Re: Fair Use

    sorry, your cheap shot (avoiding the issue by trying an irrelevant ad hominem attack) is a waste. I do not own a single MP3 - nor an MP3 player. You will never see me walking around with wires hanging out of my ears.

     

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  5.  
    identicon
    Anonymous Coward, Nov 21st, 2008 @ 8:24pm

    Re: Fair Use

    Neither do I see anything specifically addressing "use of copyrighted material" while driving the porcelain bus, does that mean it is not considered fair use ?

    I am shocked - shocked I say !
    This is an outrage

     

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  6.  
    identicon
    franz hespenheide, Nov 21st, 2008 @ 11:51pm

    fair use

    McCain and the Republicans used a copyrighted work to SELL a political product!

    It's the same as if Coca-cola used it to sell a sugar water product.

    That isn't "fair use", it's stealing ...

     

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  7.  
    identicon
    Anonymous Coward, Nov 22nd, 2008 @ 1:54am

    Who cares... His music is so old that maybe a bit of free advertising would be good. Doesn't it become public domain after 100 years or so? McCain should have used some popular music from his time like Bach or Beethoven.

     

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  8.  
    identicon
    mike allen, Nov 22nd, 2008 @ 3:39am

    Re:

    in response to comment 7 McCain couldn't use material from his time the gramophone had not been invented. cheap dig aside it is fair use.

     

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  9.  
    identicon
    Anonymous Coward, Nov 22nd, 2008 @ 3:53am

    Re: Re: Fair Use

    Smartphone with a bluetooth headset play .ogg files, right?

     

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  10.  
    identicon
    Chris Brenton, Nov 22nd, 2008 @ 4:52am

    reading too much into this

    I doubt Mr. Browne feels like he has a serious case or is actually looking for any money. More likely this is all about PR. If he does not want people to perceive that he supports the Republican ticket, what better way to do it than to object to the use of his music?

     

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  11.  
    identicon
    Anonymous Coward, Nov 22nd, 2008 @ 5:11am

    Re: Fair Use

    Some people have personal ethics, but not techdirt readers. I paid for all of my despite scum like you.

     

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  12.  
    identicon
    Anonymous Coward, Nov 22nd, 2008 @ 6:27am

    Radio stations play songs to get people to listen to their advertisements, if you make art, it is to be appreciated, if you appreciate it a lot, then you'll buy a copy for yourself. He made the song public by recording and distributing it to radio and media. If this case were precedent, then people giving reviews (negative or positive) wouldn't be allowed to show screen shots of games, pictures of the product in the packaging designed and copyrighted by someone, and the act of looking at art could be charged royalties. Give it a rest people, this is America we're talking about; Freedom anyone? Not that this particular or any headlining candidate in this past election were speaking in freedom's favor, however...

     

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  13.  
    identicon
    Mike, Nov 22nd, 2008 @ 8:01am

    Who is Jackson Browne....??? Oh yea I remember he's the tough guy who liked to punch out his girlfriend Darryl Hanna. What a JO

     

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  14.  
    identicon
    Lucretious, Nov 22nd, 2008 @ 8:25am

    I've been surprised before by McCaine's willingness to go outside of party bounds and use common sense. Not saying he'll do something about this issue in particular but its not out of the realm of possibility.

     

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  15.  
    identicon
    Anonymous Coward, Nov 22nd, 2008 @ 8:26am

    Re: Re: Fair Use

    "Some people have personal ethics, but not techdirt readers. I paid for all of my despite scum like you."

    You paid for your despite scum? What is that, exactly?
    And I am not despite scum despite your silly claim.

     

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  16.  
    identicon
    Sam, Nov 22nd, 2008 @ 10:25am

    sdf

    You people are stupid

     

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  17.  
    identicon
    Mark Regan, Nov 22nd, 2008 @ 3:06pm

    Question: "Will Sen. McCain actually try to do something in the Senate to improve copyright law?"

    Answer: As the Everly Brothers once sang: "All I have to do is Dream. Dream, dream, dream."

     

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  18.  
    icon
    kirillian (profile), Nov 22nd, 2008 @ 3:08pm

    I am not a copyright supporter DESPITE attempting to remain legal in my actions

    For all of you copyright law supporters out there, I only thought it fair that someone inform you that not every one of us who dislike current copyright laws are criminals. While I know that many people who argue against copyright law HAVE/DO/WILL break the law, I feel it's important to realize that many legitimate arguments are made as well...

    For the record, I do not and have not downloaded ANY song that I do not own the CD for. I do not play games that I do not have legal licenses for.

    That being said. I DO NOT play ANY games or listen to ANY music from original media. I have been subject to far too many broken and scratched CDs, DVDs, video tapes, etc. It is well within my rights as a consumer to protect my investment. It is well within my rights to keep a valued chair in my house from damage by covering it with a tarp or such, but why is it not within my rights to prevent damage to my license (the physical CD/DVD itself) by backing it up. Some older software used CD-keys...that was the license...Microsoft still uses a key as its license...so, it's not a big deal to use the original because they are replaceable for only costs of shipping. However, for most digital media that comes with the purchase of a physical DVD or CD, that disk IS the license itself. It is NOT replaceable should it be damaged...so I take it upon myself to protect my investment.

    That being said, the real reason that I do not support current copyright law is because I can only see it as the taking of rights from common people. That bothers me. You CANNOT legislate morality/ethics. It NEVER works. And, to top it all off, it ALWAYS backfires...inevitably, someone comes along who is willing to twist the law to work for them...You do NOT want to become the enabler(fair warning to fundamentalists of any kind...).

    I read this site because I see a group of people who clearly want to defend their rights and I am glad to see that some people here do stand up for others' rights. No matter what I feel is right or wrong, nothing comes from forcing someone to live the same way that I do...it only causes more problems.

     

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  19.  
    identicon
    besides the point, Nov 22nd, 2008 @ 4:15pm

    it's all

    ....jb's is pushing a lawsuit against the wrong party. Ohio Rep party is who he needs to take his case against. JB is just as uninformed as all the rest of BO supporters. . . JB probably didn't want the publicity and the consequential increase in record sales as it would raise record sale revenues above $250,000 and subject to BO's suck ass tax plan.

    Viva la Californication of America!

     

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  20.  
    identicon
    besides the point, Nov 22nd, 2008 @ 4:32pm

    it's all

    ....jb's is pushing a lawsuit against the wrong party. Ohio Rep party is who he needs to take his case against. JB is just as uninformed as all the rest of BO supporters. . . JB probably didn't want the publicity and the consequential increase in record sales as it would raise record sale revenues above $250,000 and subject to BO's suck ass tax plan.

    Viva la Californication of America!

     

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  21.  
    identicon
    Bunny, Nov 22nd, 2008 @ 9:16pm

    Re: I am not a copyright supporter DESPITE attempting to remain legal in my actions

    not every one of us who dislike current copyright laws are criminals

    That's from your point of view. From their point of view you are a criminal as long as presenting you as such allows them to make more money. You see, it doesn't matter to them whether you are following the law or not. What matters is whether they can make it look like you're not (under some bizarre contortions of laws if necessary) so they can get paid.

    If they can't do that, then don't worry, they will try to pass new laws to criminalize your existing behavior. Thus, for you to stay legal making those backups, you will need to pay them for each copy. Then you will need to pay them for each device you listen to them on. Then you will need to pay them for each time you listen. If at some point you get sick of them and destroy your discs... OMG, you have destroyed their property!

    Over the course of history, copyrights have been extended and expanded, fair use diminished, and it's not unreasonable to suppose that the content control crowd will try to maintain that trend until everyone can be charged with (or for) something.

    So, to sum up, you cannot hope to please them, because knowing that you are behaving perfectly doesn't pay the bills. What they want is your money, and if they can't get it then they will try to pass favorable laws, and if they can't get that, they will sue device manufacturers into adding protections and other garbage that make your life difficult unless you cough up more dough.

    Ironically, they would be more pleased if you broke their pet laws because that only helps to strengthen their argument that they are victims and need to be compensated with either more money or more laws.

     

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  22.  
    identicon
    thatguy, Nov 22nd, 2008 @ 10:44pm

    Re: radio stations?

    Radio stations also pay fees for the songs they play. You are too naive.

     

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  23.  
    identicon
    And another thing, Nov 22nd, 2008 @ 10:50pm

    Doesn't matter who

    because it's like a rapper sampling. You use it you pay for it. And since JMcC added to the adds "I approve this message" he is taking responsibility for the liability.

    Interesting, though, that the Repubs are so gung-ho to let MS get away with monopolistic practices, let the RIAA prosecute people by using anonymous warrants against ISPs to get info about file sharing (US law requires evidence prior to warrants, not fishing trips to see what may be out there) but when it comes to them they feel it's okay to interpret the law to their own use.

    No wonder the election went so badly against them.

     

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  24.  
    identicon
    hegemon13, Nov 23rd, 2008 @ 4:49am

    Re: Doesn't matter who

    A rapper sampling DOESN'T have to pay, because their work is transformative fair use. Do your research.

     

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  25.  
    identicon
    posttal, Nov 23rd, 2008 @ 6:10am

    copyright..ha ha ha

    Copyright protection..your kidding right.WE..meaning the United States..do NOTHING when China buys our products and reverse engineers them and the sells it back to us cheaper and with no quality not to mention deadly side effects and we..The United States..allows this to happen and take our jobs overseas.And now I'm suppose to be concerned that a short music clip was used without permission..
    As mentioned somewhere above the playing of this clip boosted interest in the song and artist.I guess Brown should be thankful that he didnt have to pay for the P.R. work.
    This is 2008 not 1970..we have computers now and things are free if you know where to look.When the government starts to crack down on the big boys overseas from stealing our technology and brings back our jobs and job security I'll stop.Were farming out all our industry and then bringing it back here to be sold at Walmart..God Help Us.

     

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  26.  
    identicon
    Anonymous Coward, Nov 23rd, 2008 @ 7:46am

    Re: Re: Fair Use

    Yeah, I paid for all my despite scum too, and they were worth every penny!

     

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  27.  
    identicon
    oz, Nov 23rd, 2008 @ 9:32am

    Re: Fair Use

    Shame on you, Mark Bender.

     

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  28.  
    identicon
    Stephen Colbert, Nov 23rd, 2008 @ 11:53am

    I had to write all new Christmas Carols this year to avoid paying royalties. I hope McCain works on fixing this!

     

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  29.  
    identicon
    Anonimous Coward, Nov 23rd, 2008 @ 1:01pm

    Joe, are you sure you know what the weords "ad hominem" mean?

     

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  30.  
    identicon
    JEDIDIAH, Nov 23rd, 2008 @ 3:23pm

    Just another bootlegger...

    Anyone that thinks that turning art into advertising
    against the will of the artist is "fair use" is on
    crack. The relevant work may be old enough that it
    shouldn't be protected any more. However, that's not
    what this is about. McCain has not been trying to use
    that as his excuse. He wants exempted from the rules
    that he wants to force on everyone else.

    The work is either PD or someone from the McCain cabal is a thief.

     

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  31.  
    identicon
    Anonimous Coward, Nov 23rd, 2008 @ 3:49pm

    Jedidiah, are you sure you know what the deal is?

     

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  32.  
    identicon
    Lance Drager, Nov 23rd, 2008 @ 7:23pm

    Song and politics

    As the law stands, McCain is very probably right.

    Morally he's wrong. It's not a question of money. Playing
    an artists performance in a political ad leaves the impression that the artist supports the political message.
    An *artist* should be able to prevent their *art* from being
    used to support a political cause they disagree with.
    If the law doesn't read that way now, it should be changed!

     

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  33.  
    identicon
    awakened, Nov 23rd, 2008 @ 9:23pm

    Re: it's all

    "Besides the point" you are another typical idiot from the same horde that doesn't possess a brain to have original thought, only to spew out the same trash over and over again like the trained sheep they want you to be. i feel sorry for you

     

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  34.  
    identicon
    zcat, Nov 23rd, 2008 @ 10:05pm

    Fair use HOW?

    It's not being used for educational purposes. It's not a parody. They're not reviewing the work. It's not just 'accidentally in the background' like the baby dancing to Prince. AFAICT It doesn't really meet any of the criteria that normally qualifies as 'fair use'.

    I'm all for 'fair use', but IMHO this isn't it. Someone needs to be paying some performance royalties here.

     

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  35.  
    identicon
    ahhh, Nov 24th, 2008 @ 3:40pm

    ah BSing about politics.... some mighty fine SEO work you do here. I enjoy it as well.

     

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  36.  
    identicon
    Larry Linn, Feb 24th, 2009 @ 1:31pm

    Royalties due

    Anyone can down load and listen to the song for 99 cents. If 1,000,000 people heard the advertisement, times 99 cents would be that would be $990,000. Hence, the market determines the value. Downloading, reproducing, or recreating artistic properties for any commercial use, without consent is not legal. This is a perfect example why the country is better off without McCain as President. He was raised in a military family, received his education in economics at Annoplis, and has no experience in the business world. You would never hear him claim that the buck stops with him. It is ironic that the Repugnicans have a major problem with China, where clones Microsoft software are typical. I can only conclude that the Repugnicans have no respect of intellectual property that is protected by the Supreme Court. However, using the words Republican and intellectual property in the same sentence is an oxymoron.

     

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