The Central District of California refused to grant Senator John McCain’s motion to dismiss for failure to state a claim as to plaintiff Jackson Browne’s copyright infringement suit against the Senator. Before the 2008 United States presidential election, the Ohio Republican Party (“ORP”) created a commercial for use on the Internet and on television promoting Senator McCain’s campaign for the presidency. The commercial incorporated a portion of Jackson Browne’s song Running On Empty (“Composition”). Browne filed suit against McCain, the Republican National Committee (“RNC”), and ORP in August, 2008 for copyright infringement, vicarious copyright infringement, violation of the Lanham Act (False Association or Endorsement), and violation of California Common Law Right of Publicity. Neither Senator McCain, ORP, nor RNC received a license nor Browne's permission to use the Composition in the commercial.
The court determined that McCain’s contention that the Fair Use Doctrine bars Browne’s copyright infringement claim as a matter of law was without merit. Courts analyze fair use as a mixed question of law and fact and must make factual findings or rely on undisputed or admitted material facts. Because the court found the complaint lacked facts sufficient to analyze McCain’s fair use defense and the parties had not had a full opportunity to conduct discovery, the court refused to proceed to a fair use analysis.
Additionally, the court reasoned that McCain failed to establish Browne’s copyright infringement claim was barred as a matter of law under the fair use doctrine. The mere fact that McCain used the copyright work in a political campaign does not bar Browne’s claim as a matter of law. To the contrary, the court added that in Long v. Ballantine, 1998 WL 35156025 (E.D.N.C.1998), the court rejected defendant’s fair use defense to plaintiff’s motion for attorneys’ fees for a copyright infringement claim against defendant’s use of copyrighted work in a political campaign.
The court also refused to dismiss Browne’s vicarious copyright infringement and Lanham Act claims.
If you wish to incorporate a copyrighted work in your business’ advertisements, you should seek counsel to help you secure a license to use the work.
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Ilan Jenkins: