Not a lot of people have paid attention to the question of the use of popular music in political campaigns. I wrote a law review article about it. My analysis favored the artist; I tried to attack the issue from a practical as well as a theoretical perspective and I found that the unauthorized use of a copyrighted piece of music by a political campaign was not fair use under section 107 of the Copyright Act.
So I’m inclined to think that Jackson Browne will eventually win his lawsuit concerning the use of his song “Running on Empty” to attack Barack Obama’s suggestion about tire inflation in response to pressure over rising gas prices. It’s questionable whether the McCain campaign or a state Republican Party is responsible for the ad, though, so he may lose against McCain. But I think he should win against somebody.
I was also intellectually flattered to learn that someone had written an article taking the opposite point of view to mine, specifically refuting my fair use analysis and reaching the opposite conclusion based on the importance of political speech. I still think I’m right, but it’s cool that someone else cared enough about my article to put in the time and effort to refute me.
Note that my use of the cover art from Browne’s album (which is also copyrighted by him) is fair use, since it is a minimal use of the artwork, associated with comment about the art in question, and does not impact the commerical market for the song in any way. The use of the song in a campaign commercial, however, could tend to alienate voters from Browne by suggesting his association with a political belief Browne does not advocate and neither comments about nor parodies the work itself, but rather uses the work to comment on or parody something else. The weak point in this argument is that the album art and the song are different copyrights, although I would argue that they are closely associated with one another in the minds of the average consumer.
Note also that in the linked article, Jackson Browne’s attorney is forceful in stating that the lawsuit is not politically motivated and is simply an attempt by Browne to control his song. Of course, writing and performing music is Browne’s livelihood, and “Running on Empty” is probably the most valuable piece of music Browne has produced, so one can understand his wanting to protect it. But at the same time, I have a lot of difficulty seeing this same lawsuit filed against the Obama campaign.
