ENTERTAINMENT LITIGATION: FEDERAL COURT HANDS REPUBLICANS ANOTHER LOSS

ROCKER JACKSON BROWNE SURVIVES REPUBLICAN NATIONAL COMMITTEE’S ANTI-SLAPP MOTION

Jackson Browne’s 1977 iconic song “Running on Empty” is the focal point of a federal court lawsuit which highlights the tension between the First Amendment’s strong protection for political speech and the rights of an artist to control his work. Browne sued the Republican National Committee (RNC), Senator John McCain and the Ohio Republican Party (ORP) because the ORP used “Running on Empty” in a web ad during the 2008 presidential campaign without Browne’s permission. Browne, a well known activist who favors liberal causes and candidates, sued.

A BAD IDEA TURNS INTO A LEGAL MORASS

Someone at the ORP had the bright idea of using a song — downloaded from iTunes no less — as the backdrop for a political web ad. Undoubtedly lured by Browne’s provocative lyrics — “Running on — running on empty, running on — running blind, running into the sun but I’m running behind” — the ORP used the song to critique then-candidate Obama’s energy program and his suggestion that people conserve gas by properly inflating their tires. No one “cleared” the song — i.e. obtain a proper license — to use in the commercial.

Browne sued in federal court in Los Angeles, and the RNC filed a special motion to strike under California’s anti-SLAPP statute over Browne’s right of publicity claim. The RNC challenged only one of Browne’s claims — his right of publicity claim. If it had succeeded on its motion, the RNC would be entitled to an award of its attorneys’ fees in bringing the motion.

The RNC advanced three arguments why Browne’s publicity claim should be barred. First, it argued that its use of the song in the political commercial was in the “public interest.” Next, it claimed protection for its political speech under the First Amendment. Finally, it argued that its use of the song was a “transformative” use.

The Court (Judge Gary Klausner) rejected all of these arguments. You can download the order here.

LESSONS TO BE LEARNED

In reading the order in this case, I noticed that the RNC did not argue that the publicity claim was preempted by the Copyright Act and limited their arguments to First Amendment-related defenses. Preemption under the Copyright Act generally occurs when the essence of the claim is that the publication of the work violates someone’s copyright. The facts of this case may present some hurdles for that argument — since Browne also objected to the implicit association with Senator McCain’s campaign.

The RNC may have problems with Browne’s copyright infringement claim — since they (stupidly) used the song without a proper license. However, my instincts also tell me that the RNC’s motion should have been granted as to the publicity claim.

The problem of course is getting the judge to agree with you. This case will be interesting to follow.