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IP/Entertainment Case Law Updates

Browne v. McCain, et al.

Singer-songwriter Jackson Browne brought claims for copyright infringement, vicarious copyright infringement and false association or endorsement under the Lanham Act against Senator John McCain, the Republican National Committee (RNC) and the Ohio Republican Party (ORP) for the alleged improper use of Browne’ song Running on Empty in a McCain presidential campaign commercial. In separate orders, the Central District of California denied McCain’s and RNC’s motions to dismiss for failure to state a claim.

Prior to then-Senator Barack Obama’s August 2008 campaign visit to Ohio, the ORP produced a web video criticizing Obama’s energy policy. The video featured scenes of Ohio newscasters describing high gasoline prices and contrasting depictions of the candidates’ energy proposals. Throughout the commercial, Browne’s Running on Empty can be heard playing in the background. The ORP posted the commercial on YouTube and aired it on television networks in Ohio and Pennsylvania. None of the defendants acquired a license nor received Browne’s permission to use the song in the commercial. Browne is well-known for his association with liberal causes and endorsement of Democratic candidates.

The court rejected the defendants’ assertion that Browne’s copyright infringement claim should be barred under the fair use doctrine, as a matter of law, merely because the song was used in a political commercial. The court also denied the motion to dismiss because the facts as alleged in the complaint “are simply insufficient to conduct a thorough analysis of fair use at this time.”

The court denied the defendants’ motions to dismiss the Lanham Act claims as a matter of law because, contrary to defendants’ assertions, the Lanham Act does apply to noncommercial speech, including political speech. See United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997). The court stated that “the Act’s purpose of reducing consumer confusion supports application of the Act to political speech, where the consequences of widespread confusion as to the source of such speech could be dire.” The court also rejected the defendants’ argument that Browne was required to show that the ORP actually used the mark “in commerce,” as that jurisdictional predicate is “broad and has a sweeping reach.”

The court also held that, given the limited inquiry allowed on a 12(b)(6) motion, the defendants could not establish that the commercial is an “artistic work” justifying dismissal of Browne’s claim under the “artistic relevance test,” which balances the plaintiff’s interests of avoiding confusion or false endorsement against the defendants’ First Amendment interests.

McCain’s and RNC’s third and final Lanham Act argument was that Browne could not state a claim because the commercial identifies the ORP as its source, “so there is no likelihood of confusion as to its origin.” The court rejected this argument, reasoning that ruling against Browne would be premature because the defendants had not shown “that a consumer could not possibly be confused as to whether Browne endorsed Senator McCain, RNC, or ORP.” The court also stated that the defendants had failed to address all the factors in the Sleekcraft analysis and, as such, the court could not thoroughly assess the likelihood of confusion. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596 (9th Cir. 2005).

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