Jackson Browne v John McCain: Round two

Fresh from his election KO, the Republican senator has licked his wounds in time to fight back at the singer-songwriter after using his track without permission

John McCain might have been trounced by Barack Obama, but the Arizona senator will not go gently into the night when it comes to Jackson Browne.

McCain's lawyers have set aside their electoral law books, turning instead to matters of creative freedom, fair use, and "acknowledged cliches". It's a forceful response to a lawsuit filed by Jackson Browne in August, alleging that the Republicans made illegal use of his 1977 hit, Running On Empty, as part of their campaign.

Browne, a liberal and anti-nuclear activist, supported John Edwards in the Democrat campaign - later throwing his support behind Barack Obama. He was just one of several American artists who criticised the McCain campaign for using their music without permission.

While Browne said that the Republicans needed a synchronisation licence before broadcasting his song, McCain's lawyers say that the use is protected by the fair use doctrine – and what's more, that the campaign did Browne a favour.

"Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song)," court papers read, "these claims are barred by the fair use doctrine."

In this case, "miniscule amount" means 30 seconds, "long-ago published" means "classic rock", and "increase sales" means "you owe Senator McCain a thank you".

"The Political Video transforms the Song from an anthem for the rock-and-roll lifestyle into a scathing commentary on Obama's energy plan," the filing states.

Elsewhere in the two 20-page motions, Running On Empty is disparaged as an "acknowledged cliche" and McCain's lawyers even ask the court to fine Browne, calling his lawsuit an attempt to "chill" free speech. The motions also maintain that McCain had no knowledge of the advert – that it was the sole work of the Ohio state Republican party.

Jackson Browne's lawyers have yet to comment on the documents.

Contributor

Sean Michaels

The GuardianTramp

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