On July 21, 2009, a Joint Press Release was issued announcing that a settlement had been reached in Jackson Browne v. John McCain et al. You can read the Joint Press Release here.

The settlement has three components:

1. Financial terms that are confidential;

2. A public apology from the Defendants that Running on Empty was used without permission; and

3. A public pledge by Defendants that in future election campaigns they will respect and uphold the rights of artists and to obtain permissions and/or licenses for copyrighted works where appropriate.

The settlement was widely covered by the Associated Press and Reuters. One of our favorite articles was The Sleuth column in the Washington Post. The Sleuth reported that Jackson Browne was represented by the Santa Monica law firm “known as KWIKA.” Truly an achievement in law firm branding!

By way of background, way back in 1977, Jackson Browne released a record album entitled Running On Empty, which contained Jackson’s song of the same name. Jackson wrote the song and recorded it. Running On Empty has since been famously associated with Jackson, who owns a United States Copyright registration in the musical composition.

In early August, 2008, three months prior to the 2008 Presidential Election, Jackson heard from some of his fans and friends who saw a campaign commercial for John McCain which included Running On Empty. The commercial derided the energy policy of the Democratic candidate, Senator Barack Obama, and praised Senator McCain’s policy. Running On Empty played in the background. Jackson’s fans and friends expressed surprise and unhappiness that Jackson had licensed one of his signature songs for use by the McCain campaign.

Except that he hadn’t. There was no license for the use. No one had even asked permission.

Our investigation revealed that the commercial has been produced by the Ohio Republican Party (the “ORP”), and we immediately dispatched a cease and desist letter. Our letter included requests that the commercial immediately be withdrawn from broadcast and that the ORP contact us to discuss a financial settlement for the unlicensed use. Although the commercial was immediately withdrawn, the ORP declined to discuss a settlement. Rather they put out a press release that said: “We don’t know why Jackson Browne is upset. We’ve given him more airtime than he’s had in years.”

Not only were they wrong about the airtime (Jackson’s 2006 album, Solo Acoustic, Vol. I had been nominated for a Grammy Award; in 2004, Jackson was inducted into the Rock ‘N Roll Hall of Fame) but the ORP got themselves, their national party and their candidate sued.

On August 14, 2008, we filed suit on Jackson’s behalf against the ORP, Senator McCain and the Republican National Committee. We alleged claims for copyright infringement, false endorsement under the Lanham Act and violation of Jackson’s right of publicity. You can see the Complaint here. The case was assigned to United States District Judge R. Gary Klausner, a well-respected jurist who was appointed to the bench in 2002 by President Bush.

On November 17, 2008, the Defendants filed a pile of motions to dismiss Jackson’s various claims. You can see the motions here. You can view our oppositions here. On February 20, 2009, Judge Klausner issued a series of rulings. He denied the various motions to dismiss brought by the defendants, but ruled that the case against the ORP needed to proceed in the State of Ohio. You can view the rulings here.

Copyright Infringement and Fair Use. Each of the defendants moved to dismiss the Complaint arguing that the Fair Use doctrine barred Jackson’s claim for copyright infringement. Defendants argued that because the nature of a political campaign is so-called “political speech,” it is a “fair use” as a matter of law for politicians and their campaigns to use copyrighted materials in the campaign without permission or license because the protections afforded by copyright must give way to the importance of a free flow of ideas.

The Court rejected the Defendants’ fair use argument and denied the motions to dismiss the copyright claim, holding that “copyright claims based on use of a copyrighted work in a political campaign are not barred, as a matter of law, under the fair use doctrine.” The evidence submitted by the ORP included a Declaration from John McClelland, the Communications Director of the ORP, who declared that he picked the song Running On Empty for the commercial because it “seemed to be a perfect fit” with the campaign video attacking Senator Obama’s suggestion that drivers should properly inflate their tires. Moreover, Mr. McClelland admitted that he was not previously familiar with Jackson or with the song. In light of this evidence, the Defendants could not legitimately content that they were using the song for a legitimate fair use criticism of or comment on the song itself. Thus, the use of Running On Empty was seen for what it was, a good song for a campaign commercial touting Sen. McCain’s campaign and attacking Barack Obama, and not as a comment on Jackson or his political views.

False Endorsement Under The Lanham Act. Defendants also claimed that Jackson’s claim for false endorsement should be dismissed because the US trademark statute, the Lanham Act, does not apply to “political speech.” The Court rejected this argument as well, noting that the Lanham Act DOES apply to political speech and that the Lanham Act’s purpose of reducing consumer confusion is particularly important in political campaigns. The Court also rejected the Defendants’ motion that the case should be dismissed because the video was an expressive work barring Jackson’s claim under the First Amendment.

The Court held that the Defendants had not established that the campaign video was an artistic work, and noted that the First Amendment does not bar claims for false endorsement merely because the speech is involved is political speech.

Right of Publicity. Defendants also filed a special “motion to strike” Jackson’s claim for violation of his right of publicity under California law, arguing that the claim impinged on Defendants’ right of free speech under the Constitution. Some news stories got it wrong and erroneously reported that Senator McCain had “sued back.” That wasn’t true, although defendants may have been entitled to an award of attorneys’ fees had the motion been granted.

Once again, Judge Klausner ruled against the Defendants, finding that Jackson had properly met his burden of showing that Jackson’s voice is “sufficiently distinctive and widely known that, in light of [Running On Empty's] success, its use in the Commercial could constitute use of his identity.” The Court then found that Defendants had failed to demonstrate that the use of Running On Empty in the commercial was protected “as a matter of public interest.” The Court explained that “there is no evidence that Defendants chose [Running On Empty] because [the song] or Browne were ‘matters of public interest,’” noting that the McClelland Declaration had established that the principals of the ORP did not even know that Jackson was politically active. The Court further found that the Defendants had failed to establish that their use of Running On Empty in their commercial was “transformative,” which means that the celebrity’s likeness was transformed in a manner that it becomes Defendants’ own expression. Here, the court noted that the Defendants’ used Jackson’s voice verbatim, with no changes or alterations to his voice.

Judge Klausner’s various rulings resulted in settlement discussions which culminated in early July. So what does the settlement mean?

First, copyright, trademark and right of publicity laws apply to everyone, including political candidates. The Defendants did their best to try to get Judge Klausner to rule that these laws do not apply to political candidates and their parties. The Judge disagreed, and rightly so.

Second, the settlement is significant in that by obtaining an apology and an undertaking to obtain licenses for copyrighted work in future campaigns from the most prominent Republican senator and his party, we have set an example, that hopefully will educate everyone, old and young, that copying music is illegal. Jackson issued the following statement concerning the settlement:

“Pursuing this case was not a partisan effort. This case was about artists’ rights and trying to ensure that our intellectual property rights are respected. Every day, artists’ rights are eroded more and more, and pursuing a lawsuit of this nature is the way one can raise the issue, make the point, and protect others in the future.”

He’s right. The recorded music industry was devastated by NAPSTER — not the litigation, which the industry won — but what NAPSTER represented: the ability of people to bypass copyright laws to obtain recorded music for free. During the Napster litigation, the blogosphere was full of commentary assailing the efforts of the recorded music industry to combat the unauthorized distribution and copying of music, with people claiming that music “should be free.” In that sense, Napster dealt a severe blow to the ability of the next generation of songwriters and performers to earn a living by creating music for the rest of us to enjoy. But what was really on display in Napster was a lack of knowledge of copyright and how it not only protects the rights of songwriters and recording artists to earn a living, but also to guarantee that persons who have those talents will continue to create. The founding fathers of our country understood the importance of artistic creation by providing for copyright protection in the very first Article of our Constitution. Art. I sec. 8 of the United States Constitution provides that creative people have the right to benefit financially from their creations for a limited time, after which their creative works enter the public domain. This makes sense. If this were not the case, and talented people like Jackson couldn’t earn a living from writing songs and performing them on records and in concert, and donating his talents by performing in the numerous charitable events each year, then he’d have to do something else. And our country would suffer from a lack of artistic development.