John McCain Settles Jackson Browne Lawsuit Over Song Use

from the giving-in dept

Last year, during the presidential campaign, singer Jackson Browne sued John McCain for using one of his songs in an ad. There were a few questionable aspects to the lawsuit. First, the ad wasn’t actually from the McCain campaign. There were also some questions about whether or not this was fair use since it was ostensibly used for “political speech,” but so far the court didn’t seem too amenable to that. And so, McCain has settled the lawsuit and publicly apologized to Browne, who claims this wasn’t a partisan issue (yeah, right), but about the rights of musicians. This actually would have been an interesting fair use battle, so it’s a little disappointing that it’s ended, but the argument over “musicians’ rights” strikes me as a bit silly, too. McCain could have easily used the same song live at a campaign stop, assuming the venue paid a compulsory performance license. And someone in the McCain camp could have legally covered the song, paying the correct compulsory license as well — and then potentially used that version in a commercial. Basically, all this really did was highlight how convoluted and often arbitrary copyright laws are in many cases. But, rather than learning a useful lesson on the mess that is today’s copyright law, it looks like McCain has taken the easy way out.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “John McCain Settles Jackson Browne Lawsuit Over Song Use”

Subscribe: RSS Leave a comment
Anonymous Coward says:

“McCain could have easily used the same song live at a campaign stop, assuming the venue paid a compulsory performance license.”

It isn’t the issue – it’s the use of the music as part of a marketing campaign, nothing more and nothing less. That the product being marketed is McCain rather than, say, french fries (Canadians will get the joke), doesn’t change the deal.

Yes, they could have used the music as background music or whatever at a campaign stop, but they can’t use it to promote their product without permission – which they did not get.

Kudos to Jackson Brown for standing up for his rights, and a huge thumbs down for a Senator who should know better.

Ronny says:

Re: Re:

You are protesting against McCain a bit too much, Anonymous Coward.

Every story I have seen about this issue has stated that the ad was originally created and released by the Ohio Republican Party without the knowledge of McCain. McCain was named as a party in a suit seeking financial damages, though, so his choices were fight it or settle to protect himself. Moreover, the case raised some potentially interesting questions about the the use of copyrighted works in protected speech, so that might have been a sensible line of defense against the financial liability from a lawyerly point of view.

Anyway, McCain has settled the suit in the end, so quit burning up your fingertips about it.

Anonymous Coward says:

This isn’t really about copyright any more, this is about a musician attacking someone he disagrees with politically. But that’s okay because the musician is a liberal, right?

Everyone is all for fair use until the “VICTIM” (and I use that word lightly) is a liberal.

Say goodbye to your freedoms in this country, say hello to bread lines.

Anonymous Coward says:

Re: Re:

Oh come on. Some guy threatened a telemarketer and was arrested under terrorist threats. That’s a republican/conservative law.

Both groups want to take your rights and your moneys. Just repeat that until you stop criticizing Obama for spending your money, and excusing Bush for spending your money. Or vice versa, for the democrats.

But anyway, I think this whole thing is self-correcting. Jackson Brown is able to protest the song’s use, not under copyright, but just under decent behavior. And that would do damage to the McCain campaign. If people actually expected the presidential candidates to display character, this wouldn’t be a problem.

What sort of turd keeps using a song for political purposes after the performer asks him to stop?

LAS (profile) says:

Mc-Cain - Browne lawsuit

Mike wrote: “And someone in the McCain camp could have legally covered the song, paying the correct compulsory license as well — and then potentially used that version in a commercial.”

This is a complete misunderstanding of the law. First, the allegedly unauthorized use concerned both Browne’s sound recording and Browne’s musical composition. Thus, creating a cover version would not have protected the defendants. There would still be a claim for unauthorized use of the musical composition.

Second, nowhere in the law or jurisprudence is it even suggested that “fair use” includes use in a political campaign. This was no difficult question. Examples of activities that courts have regarded as fair use include: (a) quotation of excerpts in a review or criticism for purposes of illustration or comment; (b) quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; (c) use in a parody of some of the content of the work parodied; (d) summary of an address or article, with brief quotations, in a news report; (e) reproduction by a library of a portion of a work to replace part of a damaged copy; (f) reproduction by a teacher or student of a small part of a work to illustrate a lesson; (g) reproduction of a work in legislative or judicial proceedings or reports; (h) incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

Saying that someone was engaging in “political speech” is not a “fair use” argument. The question is the PURPOSE to which the reproduction is put (see above). The defendants were not using the song for comment, criticism or education. They were using it to inspire people to vote for Sen. McCain by associating him with the sentiments and melody of the song. This is not a “fair use” purpose, nor a not-for-profit purpose (as defined under law), but closely analogous to a commercial purpose. Another factor strongly militating against a “fair use” finding is the fact that the use in question would clearly have hindered the copyright owner’s licensing of the song for other purposes, e.g. for other political campaigns and even product marketing campaigns. The use thus interfered with Jackson’s economic rights attached to his copyrights. (Note: the courts do not require a showing of ACTUAL interference based on lost opportunities, but only a theoretical one, as was recently noted in the injunction against the sequel to J.D. Salinger’s Catcher In The Rye, in Salinger v. Colting.)

Whether or not Browne was motivated politically in filing suit, the legal argument has nothing to do with democrat or republican, liberal or conservative.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...