Memo from McCain’s Motion to Dismiss Copyright Action brought by jackson Browne re McCain campaign’s use of ‘Running on Empty.’
A. Browne’s Copyright Infringement Claims Are Barred By The
Fair Use Doctrine
1. The First Factor, The Purpose And Character Of The Use,
Favors McCain Because The Use Was Made In A Non-
Commercial Political Message About Matters Of Public
Concern And Was Transformative
2. The Second Factor, The Nature Of The Copyrighted Work,
Favors McCain
3.The Third Factor, The Amount and Substantiality Of The
Use, Favors McCain
4.The Fourth Factor, The Effect Of The Use On The Potential
Market For Or Value Of Plaintiff’s Work, Favors McCain
B. Browne’s Lanham Act Claim Fails As A Matter Of Law
1.The Lanham Act Does Not Apply To Political Speech
2.Browne’s Lanham Act Claim Is Barred By The “Artistic
Relevance” Test Imposed By The First Amendment
3.As A Matter Of Law, There Can Be No Likelihood Of
Confusion Stemming From The Political Video