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.
The first lawsuit is a motion to dismiss. McCain’s attorney, Lincoln Bandlow, argues that the lifting of a snippet of the song for political advertising constituted fair use. That is, it met the standard four-part test that the courts apply in determining the legality of borrowing copyrighted material without securing permission: 1) the work’s purpose and character (McCain argues the ad was neither commercial nor transformative); 2) the work’s nature (it’s a more than 30-year-old song, and one whose title has become an everyday expression); 3) the amount and substantiality of the work’s use (the commercial only used the title phrase); and 4) the effect of the work’s use (rather than damage the song’s commercial potential, say the defendants, the campaign ad will enhance it). McCain also is arguing that the Lanham Act pertains only to commercial rather than political speech.
McCain’s second suit amounts to an anti-SLAPP motion. “SLAPP” is an acronym for Strategic Lawsuit against Public Participation. It’s become a common tool for corporations who want to limit their critics’ free speech. The purpose of a SLAPP action isn’t so much to win in court as it is to stretch out the litigation process to frustrate the target into ceasing public criticism. “Short of a gun to the head,” writes New York State Supreme Court Judge J. Nicholas Colabella, “a greater threat to First Amendment expression can scarcely be imagined.” As Jackson Browne’s suit demonstrates, SLAPP is a game that anti-corporate types can play, too. Magnifying the problem is that federal SLAPP actions operate under a “notice pleading” doctrine, which requires only that the plaintiff (i.e., Browne) include a brief listing of claims asserted. In other words, Jackson Browne can sue first and worry about discovery later. So far, McCain only seeks to recover attorney’s fees and costs.
It’s pretty hard to sympathize with Browne. In addition to being on shaky legal ground, the man needs anger management lessons. Typically, when the holder of a copyright perceives an infringement upon intellectual property, that person or organization first brings the matter to the attention of the apparent violator. A lawsuit is a last resort, filed only after the violator, given ample time, fails either to change the content or offer monetary compensation. It’s rare when someone comes out of the blue at warp speed with a lawsuit. At least, sisters Ann and Nancy Wilson of Heart were satisfied to publicly denounce Sarah Palin’s use of the band’s 1977 hit, “Barracuda,” as a vice-presidential campaign theme song. Then again, these harpies’ “Up Yours” open letter to John McCain over the song renders Jackson Browne cuddly by comparison.
The Browne case isn’t the first time a popular musician has gone to court alleging voice misappropriation. Perhaps the best-known instance occurred in the realm of commerce, not politics. Back in November 1988, Tom Waits sued Frito-Lay and its advertising agency, Tracy-Locke, under the Lanham Act and California law, claiming his song, “Step Right Up,” was misused to promote Salsa Rio Doritos. Tracy-Locke had hired singer Stephen Carter to do a Waits-like cover version for a radio commercial that aired on more than 250 stations nationwide. A jury ruled in favor of Waits, awarding him $2.6 million, a decision upheld by a federal appeals court. Waits argued that Carter’s voice bore such an uncanny resemblance to his own that audiences might get the impression he (Waits) was endorsing the product.
Defining “fair use” in most cases isn’t easy. There are many factors to consider in determining whether a political or product campaign has infringed upon someone else’s copyrighted work. But as a general rule, it’s better to err on the side of free speech. I can think of at least a dozen common expressions that began in the form of lines in episodes of “Seinfeld” and “The Simpsons.” And I can cite dozens of songs released since the mid 1980s that have “sampled” clips of other songs or spoken words. Imagine the legal chaos if the holders of intellectual property in every instance filed suit.
In the meantime, political candidates might consider paying songwriters to write original material. It could be a lot cheaper in the long run.