When the Republican Party recently ran an ad attacking Sen. Barack Obama’s energy policy, with Jackson Browne’s song “Running on Empty” playing in the background, long-time Democratic activist Browne punched back.
Browne sued John McCain, the Republican National Committee and the Ohio Republican Party for using his song in the commercial, which mocks the suggestion by Democratic Presidential candidate Obama that voters can conserve gasoline by keeping their car tires inflated to the proper pressure.
“[T]he [c]ommercial falsely suggests that Browne sponsors, endorses and is associated with McCain and the Republican Party, when nothing could be further from the truth,” states Browne’s complaint, which was filed in U.S. District Court for the Central District of California.
In fact, Browne supports McCain’s opponent. “Browne’s public support for the Democratic Party and its presumptive candidate for President of the United States, Senator Barack Obama, is well-known.” the complaint says.
“Throughout Browne’s career, he has closely associated himself with liberal causes and Democratic political candidates,” states the complaint. “Browne has often performed at political rallies for Democratic Party candidates.”
Neither McCain nor the Ohio or National Republican parties sought or received a license or Browne’s permission to use his song, according to the complaint. The ad was created for broadcast in Ohio and Pennsylvania, but also was streamed over the Internet, the suit alleged.
The song at issue was released on the 1977 platinum album also titled “Running on Empty,” which was Browne’s all-time best-selling album. The complaint alleges that the McCain campaign has used songs by Frankie Valli, ABBA and John Mellencamp in commercials and events without authorization, prompting demands that he cease using works by those artists as well.
Browne is seeking $75,000 in damages and an injunction to stop the commercial from being played. He is claiming the ad infringed on his copyright, and violated his right of publicity under California common law.
A spokesman for McCain’s campaign told media outlets that McCain’s campaign was not responsible for the ad. But Browne’s attorney said that the Republican Party of Ohio was acting as an agent for McCain when it created the ad.
Why this matters: If the advertisement had involved the sale of a commercial product, Browne might have an easy victory; advertisers are required to obtain licenses to use copyrighted works in their ads. However, political speech receives a higher level of First Amendment protection than does commercial speech, and Browne may have a harder time proving his case. McCain may claim his brief use of a portion of the song was fair use. Nonetheless, to avoid litigation, candidates for political office would be wise to seek permission to use works from artists who endorse or support them.