John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to Jackson Browne.
The singer/songwriter sued McCain in August after the Republican candidate for the highest office in the land used his song, Running on Empty, in a campaign commercial that targeted Obamas energy plan. At the time, many didnt take the legal threat very seriously, but based on two motions filed this week in U.S. District Court in California, the McCain campaign sure does.
The first is a standard motion to dismiss, claiming that McCains use of the song was fair use. The campaigns fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title thats an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase, and cites a recent judgment against Yoko Ono, who had sought to prevent the unauthorized use of John Lennons Imagine in a film); and the effect of the use of the song (McCain says that rather than damage the songs commercial potential, his use will likely increase the popularity of this thirty year-old song).
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