October 7, 2008 5:40 PM
ELECTION 2008: Jackson Browne Is No Fan of John McCain
Posted by Brian Baxter
UPDATE: July 21, 6:46 p.m. The New York Times reports that Jackson Browne and John McCain have settled their lawsuit. Financial terms of the settlement have not yet been disclosed.
In the hours leading up to tonight's presidential debate, John McCain probably isn't thinking about a political advertisement his campaign ran in early August in Ohio. But singer-songwriter Jackson Browne still is.
Browne is suing McCain over the Republican nominee's use of his song Running On Empty in an ad mocking Barack Obama's gas conservation policies. (For those somewhat ignorant of Browne's music, as this writer initially was, his biggest song--Take It Easy--was a major hit for The Eagles.)
The Am Law Daily caught up with Browne's lawyer, Lawrence Iser of Santa Monica litigation firm Kinsella Weitzman Iser Kump & Aldisert, to get the skinny on the suit.
How did this come to light?
Some Jackson Browne fans notified his management when they saw an ad bashing Barack Obama with Jackson's music in it. They said they couldn't believe what they were seeing. Management contacted me and we sent out cease-and-desist letters to the Ohio Republican Party, demanding they take [the ad] down and contact me to discuss compensation for the use [of Jackson's music].
Did they do so?
They stopped broadcasting it and took it off of YouTube, but The Huffington Post had already picked it up and it had run on CNBC. So it was getting national exposure. And rather than call me to discuss compensation for the use of the copyrighted composition, they issued a statement to the press that said something along the lines of, "We don't know why Jackson Browne is upset, we've given him more airtime than he's had in years." A year or two ago, Jackson was inducted into the Rock and Roll Hall of Fame, and his last album was nominated for a Grammy Award, so as you can imagine, this upset us a great deal.
I see where this is going, but why not just let it go if they took it down?
Jackson Browne doesn't license his music for commercials. That makes what John McCain did even worse--because it would be the first time that Jackson's allowed any of his musical compositions to be used in a commercial. And if Jackson were to lend his songwriting to the sale of a product or a persona, which is what the political commercials are for, that's a very valuable right that we allege the defendants just took without fairly discussing compensation. This [ad] essentially implied that Jackson endorsed John McCain. So they left us no choice but to sue here, and we did so on August 14 in U.S. district court in Los Angeles. We're suing for false endorsement, as well us under California's right of publicity. They done wrong here and we intend to hold them to account.
Did anyone reach out to Jackson beforehand and ask if they could use the song?
No one reached out to Jackson and his publisher, nor did anyone reach out to the record company, which owns the master recording that they used. If you use a song in a commercial, you actually need two licenses: a synchronization license for the composition of the song itself from Jackson's publisher, and a master use license from whoever owns the sound recording on Jackson's record.
Who is the record company? Are they part of the suit?
I think it's Rhino Records, which is a division of Warner Music Group. To our knowledge they did not get a license from the record company, but [Rhino's] not part of the suit and we're not suing for use of the sound recording, only the use of the musical composition. We're also suing for having Jackson's voice in the commercial under California's right of publicity, and under the Lanham Act for the implied false endorsement of John McCain by associating himself with Jackson Browne. Jackson is a well-known political voice.
I'm going to guess that Jackson's been outspoken for Democratic causes?
Yes, Jackson traditionally supports Democratic and liberal candidates and he's been very outspoken on political and environmental issues throughout his career.
Who is lined up as defense counsel on this suit?
McCain's lawyer is Lincoln Bandlow at Spillane Schaeffer Aronoff Bandlow in Los Angeles. The other lawyers are Howard Klein and Sang Dang with Klein, O'Neill & Singh in Irvine, Calif., for the Republican National Committee. And then Rebecca Connolly from Grunsky, Ebey, Farrar & Howell in Watsonville, Calif., represents the Ohio Republican Party.
Have there been hearings in the case yet?
No, we've given them an extension of time to retain counsel and all three of their responses are due around October 23.
Is this the first case you've ever had against a political candidate?
In other words, have I ever sued someone running for president before? No! I've done lots of work for famous people like Michael Jackson, The Beatles, Courtney Love, Axl Rose, and Crosby, Stills and Nash, but no one has ever asked me to sue a U.S. senator or candidate for public office. There's been a lot written lately about the use of certain songs by the Republican Party at their campaign rallies. It's a different use than that of a commercial.
Do these things happen often between musicians and politicians?
Bruce Springsteen got mad back in 1984 when Ronald Reagan used Born in the U.S.A. on the campaign trail. Tom Petty threatened to sue George Bush in 2000 when he used I Won't Back Down. And you probably read about the band Heart getting very upset when Sarah Palin used their song Barracuda at the RNC.
How does the law differentiate between rallies and ads?
There's a different kind of license required for the television commercial--the synchronization license--than there is to play it live at an event. Most of the time when you play something live at an event, it's covered by the public performance license and the campaigns purchase a traveling public performance license from ASCAP and BMI--the two leading public performance organizations--that covers the use of songs at the rallies.
And that upsets some musicians even more?
Yep. But what some artists are complaining about here is more than just publishing, it's the implied endorsement. They don't want their song, talent, or persona associated with Republicans. And that's why the Lanham Act exists, because of that false endorsement. Nobody has decided to take on the Republicans other than Jackson at this point. They could, but musicians by nature are not litigious.
Yeah, I've represented Jackson for quite some time--a lot of people try to use Take It Easy in commercials--but he's certainly not a litigious guy. We offered them the opportunity to try and work out the financial end of this but they just blew us off. And that's why we have patent and copyright law, it derives from the right in the Constitution to profit from your living. If you use Jackson's song in a commercial, he deserves to get compensated. So we have a very valid claim here.
What's the timetable for this case? If McCain wins the election, could that complicate things?
Most of these cases settle but if you go to trial, it's usually within 16-18 months after filing. The one potential complication is if Senator McCain is elected president. If so, I foresee some possible problems in getting discovery. But I don't think the case would be stayed if he's a sitting president because these are not acts that occurred while he was president. So we should still be entitled to proceed if he wins the election.