On Monday, Central District of California Federal Judge Gary Klausner gave Presidential candidate John McCain, the Republican National Committee, and The Ohio Republican Party an extension until November 17 to respond to the complaint for copyright infringment filed against them by musician Jackson Brown.  Judge Klausner had previously ordered the defendants to answer the complaint by October 24.

At issue in the case is a commercial released by the Ohio Republican Party that mocks Barack Obama’s suggestion that the country’s motorists could conserve gasoline by keeping their tires properly inflated.  During the commercial, a sound recording of Jackson Brown’s Running on Empty plays in the background.  According to Mr. Brown’s complaint, this “falsely suggests that Brown sponsors, endorses and is associated with McCain and the Republican Part. when nothing could be further from the truth.”  None of the defendants sought or obtained a license of permission to use Mr. Brown’s work.

McCain and the republican party have been on the wrong end of a number of cease and desist letters from artists whose songs were used without permission of compensation, including ABBA, Franki Valli, and John Mellencamp.  To date, only Mr. Brown has brought suit, but any of the other artists likely would have standing to do the same.  (If you change your mind ABBA, take a chance on me.)

Assuming for the moment that this is a clear cut example of copyright infringement, the interesting question becomes what potential exposure does McCain have for damages?  We don’t know what his position is because the defendants have managed to avoid answering Mr. Brown’s complaint.  However, I think its safe to assume that McCain will claim that he had no hand in the development of the commercial and that he never approved violating intellectual property or publicity laws. 

That’s where the Bipartisan Campaign Reform Act (BCRA), enacted in 2002, comes into play.  It requires “a statement by the candidate that identifies the candidate and states that the candidate has approved the communication”. The “Stand By Your Ad” provision was intended to force political candidates running any campaign for office in the United States to associate themselves to their television and radio advertising.  One would think then, as a matter of law, Mr. McCain cannot claim to be an innocent infringer. It will be interesting to see whether BCRA is interpreted this way by the court.   

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This entry was posted on Friday, October 24th, 2008 at 2:02 pm and is filed under Copyright, Uncategorized, copyright infringement, copyright registration. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.