John McCain had better be planning on using instrumental music from the 19th century for his next Senate seat run. After a lawsuit he filed against singer/songwriter Jackson Browne in the U.S. District Court in California this week, he'll probably alienate any musicians who haven't already asked him to stop using their songs during his failed presidential bid.
You may recall that back in August, Browne filed suit against McCain's campaign for using his song, "Running on Empty," in a campaign ad, citing copyright infringement and false endorsement. The laid-back California rocker was among a group of musicians — which also included Heart, the Foo Fighters and Van Halen — who asked McCain to stop using their songs in the Republican senator's appearances during his White House bid.
Now, McCain is hitting back. According to The Hollywood Reporter, McCain's lawyers filed two motions last week. One motion asks the judge to dismiss Browne's suit, citing fair-use laws and arguing that the song was used in a non-commercial manner, that its title is an acknowledged cliché, that only the title phrase was used and that the use of the song didn't damage its commercial potential, but "will likely increase the popularity of this 30-year-old song." Lawyers also argue that the use of the song didn't amount to a "false endorsement" because that provision of copyright law protects against commercial rather than political speech.
Oh, and one more thing — and this is the part that may force McCain to use nothing but chanting monks next time around. The second claim is one usually used by defendants to win monetary damages after a plaintiff has subjected them to a lawsuit meant to curtail free speech. McCain isn't looking for cash on this one, just attorney fees and costs, but the Reporter said "claiming an artist has interfered with free speech is quite a poke of an eye in show business." Besides, McCain's lawyers argue, the senator didn't even make the ad; it was created by the Ohio Republican Party.
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