John McCain's lawyers respond to Jackson Browne

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John McCain's lawyers respond to Jackson Browne

Fri Jan 23, 2009 @ 05:04PM PST

By Eriq Gardner

Mccain,john In advance of a hearing to determine whether singer Jackson Browne's lawsuit against 2008 Republican presidential candidate John McCain will continue or be thrown out, both sides are posturing with legal briefs.

Earlier this month, attorneys for Browne filed opposition papers to McCain's motion to dismiss, arguing that copyright and rights-of-publicity protected Browne's hit song "Running on Empty" from being used in a campaign commercial. Yesterday, attorneys for McCain responded with two filings of their own, pointing to Browne's concessions on the nature of the dispute as a reason why the court should dismiss the action.  

Here's a copy of the first motion, arguing that Browne's concession that McCain used a snippet of the song "as part of a political message" that "criticize[d] President-elect Obama's energy policy" is an acknowledgment of the political nature of the use. McCain's lawyers believe this to be important because it would factor largely into the court's fair use analysis. Previously, Browne pointed to case law that demonstrated not every use of copyrighted material in political speech to be fair.

The second motion is in support of a anti-SLAPP motion that seeks to punish Browne's alleged misuse of the judicial system to trample First Amendment speech. McCain's lawyers accuse Browne's camp of "ignoring all of the on-point cases" (their boldface, not ours), and says that since they've met the first prong of the state's anti-SLAPP statute — whether the considered speech is a protected one like a public policy message — the burden "shifts to Browne to prove there is a probability he will prevail on the merits of his claim."

Very interesting reading, and what a court decides next month could help determine how political campaigns use copyrighted music in the future.

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to [email protected]

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