Back in the days when a presidential candidate hired someone to write a campaign theme song, the result usually was a silly, innocuous ditty whose significance was far more historical than artistic.  In our enlightened age, by contrast, a candidate is now more likely to pluck a familiar song from the public domain in order to turn on the multitudes.  The result, regrettably, can be a silly, innocuous lawsuit the implications of which go well beyond elections.

That brings us to one of the more intriguing political sidelights of 2008.  This past August, singer-songwriter Jackson Browne sued Senator John McCain for using one of his songs, “Running on Empty,” as presidential campaign fodder.  Browne was highly upset that a portion of the song, long an FM staple first released in 1977, made its way into a McCain television ad that criticized the energy plan of his opponent, Barack Obama.     

McCain, as if we needed any reminder, lost the election.  But as befitting of a man who never quits, he’s determined not to lose in court.  Represented by the blue-chip Los Angeles litigation firm of Spillane Shaeffer Aronoff Bandlow, McCain about two weeks later filed two separate motions in federal court against Browne.  I confess to having little emotion invested in this battle.  But whether or not the case goes to trial, here’s hoping for a McCain victory. 

Truth to tell, I’ve never gotten all that worked up over Jackson Browne’s music.  Granted, he knows how to construct a song and has a way of attracting first-rate musicians like lap-steel guitar virtuoso David Lindley.  But his recordings usually come off as too inhibited for me to uncork a bottle of wine and dream dark other-worldly thoughts.  His romanticism isn’t as convincing as that of Van Morrison – or for that matter, Jim Morrison.  Well, there’s no accounting for taste.     

More apropos to the issue at hand, Browne is a vocal politician of the Left.  Much as I don’t share his views, politics alone isn’t normally a deal breaker for me.  Every artist has a point of view – or an “agenda,” to use a cliché of today’s fevered pundits.  Browne long has made clear his sympathies lie with Green Party-style progressivism.  He’s headlined or participated in benefit concerts for presidential campaigns of Ralph Nader (2000), John Kerry (2004) and John Edwards (2008).  After Edwards flamed out, he endorsed Barack Obama. 

The new lawsuit makes it awfully hard to put art before politics.  For one thing, Browne’s action reeks of vindictiveness.  His man won and he still won’t drop it.  Second and more importantly, a victory would set a bad legal precedent. 

Browne argues that the McCain campaign violated the Lanham Act, formally known as the Trademark Act of 1946.  That law bars “false association or endorsement” in the use of someone else’s copyrighted material for advertising purposes.  It also sets forth remedies.  Browne always has had an ironclad policy of not allowing his songs to be used for advertisements.  So when his management this summer began receiving e-mails from fans angered and perplexed as to why their hero had sold out to the forces of evil, Browne likewise pitched a fit – and got himself a lawyer.  Within days, he filed suit in U.S. District Court in Los Angeles alleging that the Republican Party, its Ohio affiliate (which produced the ad), and McCain himself illegally had infringed upon his copyright and created the false impression of an endorsement. 

The Arizona senator, say Browne and his lawyer, is a lawbreaker.  “When you’re a senator, or you’re elected president, you take an oath to preserve, protect and defend the Constitution of the United States,” said Browne’s lawyer, Larry Iser.  “Copyright derives directly from the Constitution.”  As if this sanctimonious civics lesson weren’t enough, Browne and Iser demanded damages in excess of $1 million and a formal apology from McCain and the GOP to the American people.    

The McCain campaign initially responded by disassociating itself from the ad.  Under pressure, the Ohio Republican Party stopped running the commercial and even pulled it from YouTube.  But after the election, Browne hadn’t dropped his suit.  This time McCain came for a showdown, guns blazing, with a pair of legal actions of his own.   Continued...