John McCain Cites Yoko Ono (and Fair Use) In Defending 'Running on Empty' CaseWed Nov 19, 2008 @ 08:17PM PST
By Eriq Gardner
Browne sued McCain in August after the Republican candidate for the highest office in the land used his song, "Running on Empty," in a campaign commercial that targeted Obama's energy plan. At the time, many didn't take the legal threat very seriously, but based on two motions filed this week in U.S. District Court in California, the McCain campaign sure does.
Represented by attorney Lincoln Bandlow at Spillane Shaeffer, McCain has filed two 20-page motions.
What's he arguing?
The first is a standard motion to dismiss, claiming that McCain's use of the song was fair use. The campaign's fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title that's an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase and even cites a recent Yoko Ono case); and the effect of the use of the song (McCain says that rather than damage the song's commercial potential, his use "will likely increase the popularity of this thirty year-old song").
McCain also says that Browne's assertion that the Lanham Act's prohibition on the implication of a "false association or endorsement" fails because it only applies to "commercial speech," not "political speech."
The second fililng is maybe even more interesting. It's an anti-SLAPP motion, which is typically used by defendants as a way to seek monetary damages after a plaintiff has subjected a defendant to a lawsuit meant to chill free speech. So far, McCain is only looking for attorney's fees and costs, but claiming an artist has interfered with free speech is quite the poke of an eye in show business.