Several weeks ago at the height of the election race, I posted concerning McCain and Palin’s unauthorized campaign use of songs by several different artists. Well, the campaign is over, McCain has lost, but that doesn’t mean he’s ready to throw in the towel on the lawsuit brought against him by Jackson Browne. McCain (or, as McCain claims, the Ohio Republican Party) used a 30 second clip of the Browne song “Running on Empty” in a commercial televised in Ohio. While a majority of McCain’s usage of music by groups that are Democrats and in other ways don’t support this aging war-hawk isn’t eligible for trial as it was broadcast live and publicly at venues that traditionally have rights to use songs, Browne’s lawsuit is the exception because it did it in a nationally televised with without asking for rights to use the song.
But who would for a second think that McCain, despite making campaign promises based around honesty and integrity, would actually be honest and have integrity? That’s why, rather than admitting he did wrong and seeing to compensate Browne for it, he’s counter-suing claiming that these are frivolous lawsuits. McCain claims that, “Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the minuscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine.”
That defense is contrasted by Browne’s claim that the use was a violation of his publicity rights, copyright infringment and a false endorsement. My question is how can McCain claim that his use was public interest? It certainly wasn’t in the interest of the person who made the song, a longtime Democrat. The use of the song didn’t help the public in any way. You can say that there was a minuscule amount of the song used, but 30 seconds of a 2 minute spot, or 25% of the commercial, doesn’t seem minuscule to me. But to me, the greatest threat here is the unauthorized use of a song to give the appearance of promotion on the part of the artist. If an artist is clearly against what a politician stands for, then the “political” fair use argument shouldn’t stand. Of course, this counter suit and the failure on McCain’s part to take responsibility for what he and his party did simply makes me more certain that the country picked the right President. But where do you stand on “fair use” and politicians using musicians’ songs without their knowledge?