John McCain may have been thwarted by Barack Obama, and his muse Sarah Palin may have returned to the land of snow machines, but he’s still caught up in a fight with Jackson Browne regarding McCain’s use of Browne’s song “Running on Empty” in an Obama attack ad. Browne is continuing his suit in California court, and this week McCain was compelled to file two motions: one calling for a dismissal based on fair-use, and the other an anti-SLAPP motion that is used by defendants who claim damages because they feel their free speech rights were infringed upon by a court motion.
The first motion seems like it could pass the court, as McCain is claiming that his campaign followed the four-factor test to determine if a song is used under fair use. The four factors are: Character of the use of the song (McCain claims it was not used for commercial means), the nature of the work (McCain says the song’s title itself is a cliché), the amount of the song used (McCain’s ad only used the title phrase), and the effect of the use of the song (McCain says his ad will help the song’s sales).
I’m not sure about that last one (is anyone really going and buying Jackson Browne CD’s these days, and would McCain really bump sales), but the other points seem like a valid argument.
The second filing is obviously a plan-B in case the first motion fails, as McCain is seeking attorney’s fees (and could seek other damages) claiming that Browne hurt his right to free speech (I guess campaign ads are covered under speech these days) by filing the original motion.
The court is expected to rule on McCain’s motions soon, but the longer this drags on, it only makes McCain’s uncomfortable time in the loser-spotlight more uncomfortable. [Reuters]