Browne v. McCain
Decision Date | 20 February 2009 |
Docket Number | No. CV 08-05334-RGK (Ex).,CV 08-05334-RGK (Ex). |
Citation | 611 F.Supp.2d 1062 |
Court | U.S. District Court — Central District of California |
Parties | Jackson BROWNE v. John McCAIN, et al. |
Lincoln D. Bandlow, Lathrop & Gage LLP, Los Angeles, CA, Howard J. Klein, Sang N. Dang, Klein O'Neil & Singh LLP, Irvine, CA, for John McCain, et al.
Proceedings: (IN CHAMBERS)
A few months before the 2008 Presidential election, Jackson Browne ("Browne" or "Plaintiff") sued Republican Presidential candidate, Senator John McCain ("Senator McCain"), along with the Republican National Committee ("RNC"), and the Ohio Republican Party ("ORP") (collectively "Defendants") for copyright infringement, and other related claims. Browne's claims arise out of Defendants' alleged improper use of his song Running on Empty in a campaign commercial for Senator McCain.
Presently before the Court is RNC's Special Motion to Strike Plaintiffs Common Law Right of Publicity claim. For the following reasons, the Court DENIES RNC's Motion.
The pertinent facts are alleged as follows:
Browne is a singer and songwriter who is closely associated with liberal causes and Democratic political candidates. Browne's public support for the Democratic Party and President Barack Obama is well-known. In fact, Browne has performed at political rallies for Democratic Party candidates.
Senator McCain is a citizen of Arizona and ran as the Republican Presidential candidate in the 2008 Presidential election. RNC is a non-profit political organization based in the District of Columbia. ORP is a non-profit political organization based in Ohio.
In 1977, Browne released an album entitled Running on Empty (the "Album"), which contained a composition of the same name (the "Composition"). The Album reached platinum status (i.e., sales of one million or more) seven times over. The Album and Composition are both famously associated with Browne, who owns a federally registered copyright in the Composition. It is that Composition that Browne alleges Defendants improperly used in a campaign commercial for Senator McCain.
The Composition is approximately four minutes and fifty-six seconds. It begins with an approximately twenty-two second instrumental introduction featuring a robust backbeat and piano ("Instrumental Introduction"). The chorus repeats three times over the course of the Composition and consists of the following lyrics "Running on—running on empty, Running on— running blind, Running on—running into the sun, But I'm running behind" ("Chorus").
In anticipation of then-Democratic Presidential candidate Barack Obama's visit to Ohio the week of August 4, 2008, ORP, acting as an agent for the RNC and Senator McCain, created a web video1 to criticize and comment on Barack Obama's energy policy and his suggestion that the country could conserve gasoline by keeping their automobile tires inflated to the proper pressure (the "Commercial"). During the Commercial, a sound recording of Browne performing the Composition, Running on Empty, plays in the background.2
The Commercial is approximately one minute and twenty seconds. It begins by displaying the words "Pain at the Pump" in large white and black letters, with bluish-pink graphics, followed by a twentyfive second montage of Ohio news broadcasts regarding the high price of gas. The montage features reporters from Channels 5, 6, and 10, who state: (1) "we don't have to say it, we are all certainly sick of the pain at the pump"; (2) "now the price at the pump is going up once again"; (3) $3.64 for a gallon"; (4) "gallon of regular going for $3.69"; (5) "gas prices are thirtyeight percent higher now than they were this time last year"; and (6) "for most of us, fill-up can be a budget buster." The montage concludes with a Channel 5 reporter asking "so how do you bring down the price of gas here in northeast Ohio and across the U.S.A.?"
The Commercial then cuts to a CNN broadcast of then-Democratic candidate Barack Obama at a rally saying "making sure your tires are properly inflated." The sound of a needle dragged across a record is heard as the screen flashes the word "What!?" Next, an image of Senator McCain appears, along with the words "Senator McCain has [illegible]." The Commercial then cuts to information on Senator McCain's energy plan, including the words: "Expand Domestic Oil and Natural Gas Production; Reform Transportation Sector; Invest in Clean, Alternative Sources of Energy; Address Climate Change; Promote Energy Efficiency."
At approximately thirty-seven seconds, the Commercial cuts to Senator McCain at a rally saying
At approximately fifty seconds, the Instrumental Introduction of the Composition begins playing as the screen displays the words "What's that Obama plan again?" At approximately fifty-seven seconds, the volume on the Composition is lowered, but is still audible, and the Commercial cuts back to the CNN broadcast of Obama at a rally saying "making sure your tires are properly inflated, simple thing, but we could save all the oil that they are talking about getting off drilling if everybody was just inflating their tires?" At approximately one minute eight seconds, the volume of the Composition increases as the Commercial cuts to a CNN broadcast of former Presidential candidate Senator Hillary Clinton saying "shame on you Barack Obama."
At approximately one minute ten seconds, the Commercial cuts to a photo of Barack Obama with the words "Barack Obama: No Solutions," which changes to "Barack Obama: Not Ready to Lead" as Browne is heard singing the Chorus of the Composition.
The Commercial then concludes with a black screen containing small print at the bottom that reads
Neither Senator McCain, ORP, nor RNC received a license nor Browne's permission to use the Composition in the Commercial.
On August 4, 2008, ORP posted the Commercial on YouTube.com ("YouTube"). ORP also emailed a press release containing a link to the Commercial to Ohio residents, along with news organizations and people interested in Ohio politics.
In addition to the YouTube posting, the Commercial also aired on television and cable networks in Ohio and Pennsylvania, as well as on other websites such as the Huffingtonpost.com. The Commercial was also aired on and discussed by the national news media, including MSNBC.
After receiving a letter from Browne's counsel, ORP removed the Commercial from YouTube on August 6, 2008.
Since the Commercial first appeared on television and the Internet, Browne has received numerous inquiries expressing concern about Defendants' use of the Composition and Browne's performance,
Browne contends that the Commercial falsely suggests that he sponsors, endorses, or is associated with Senator McCain and the Republican Party, "when nothing could be further from the truth."
As a result, Browne sued Defendants on August 14, 2008, asserting claims for (1) Copyright Infringement, (2) Vicarious Copyright Infringement, (3) Violation of the Lanham Act (False Association or Endorsement), and (4) Violation of California's Common Law Right of Publicity.
Under the Anti-SLAPP Statute, a defendant may make a special motion to strike a claim that is brought primarily to chill the valid exercise of free speech. See Cal.Civ.Proc.Code § 425.16. Such motions ("Anti-SLAPP motions"), may be brought in federal court against a plaintiff's state law claims. U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 970-73 (9th Cir.1999).
A defendant generally brings an Anti-SLAPP motion at the pleading stage, which forces the plaintiff to present evidence supporting its claims. See Varian Med. Sys., Inc. v. Delfino, 35 Cal.4th 180, 192, 25 Cal.Rptr.3d 298, 106 P.3d 958 (2005). The trial court then evaluates the merits of the lawsuit using a summary judgment-like procedure. Taus v. Loftus, 40 Cal.4th 683, 714, 54 Cal.Rptr.3d 775, 151 P.3d 1185 (2007).
The Anti-SLAPP Statute ("Section 425.16") places the initial burden on the defendant to make a prima facie showing that the plaintiff's claims arise from an act made in connection with a public issue or an issue of public interest, in furtherance of the defendant's right of free speech under the United States or California Constitutions. Cal.Civ.Proc.Code § 425.16(b)(1). If the defendant meets this initial burden, the burden then shifts to the plaintiff to establish, by competent and admissible evidence, a probability that the plaintiff will prevail on his claims at trial. Cal.Civ.Proc.Code § 425.16(b); Chavez v. Mendoza, 94 Cal.App.4th 1083, 1087, 114 Cal.Rptr.2d 825 (Cal.App. 4th Dist. 2001).
When analyzing an Anti-SLAPP motion, a court must accept as true all evidence favorable to the plaintiff and assess defendant's evidence only to determine if it bars plaintiffs submissions as a matter of law. Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal.App.4th 688, 699-700, 61 Cal.Rptr.3d 29 (2007). Since an Anti-SLAPP motion is brought at an early stage of proceedings, the plaintiffs burden of establishing a probability of success is not high. Id. Nonetheless, if the plaintiff is unable to satisfy his burden, the court should grant the defendant's motion. DuPont Merck Pharmaceutical Co. v. Super.Ct. (Newman), 78 Cal.App.4th 562, 564, ...
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