McCain Campaign Over, but Battle Over Unauthorized Song Rages On

Defeated Republican presidential nominee fires back at Jackson Browne over lawsuit

As far as John McCain is concerned, it's Jackson Browne who's the pretender.

The beaten Republican presidential nominee is firing back at the Rock and Roll Hall of Famer, claiming Browne is so desperate for publicity to boost his career that he sued McCain for using "Running on Empty" during a TV commercial.

The Arizona senator has filed a pair of motions in response. The first seeks to have the suit tossed, claiming McCain's unauthorized use of the 1978 hit was covered under fair use provisions of federal copyright law.

"Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the minuscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine," he says in the new court documents.

The first motion also claims the McCain campaign didn't even produce the offending clip, instead passing the buck to the Ohio Republican Party. McCain says his cohorts in the Buckeye State were responsible for putting together the two-minute ad, featuring a 30-second snippet of the song.

McCain's second motion is seeking attorney's fees and court costs for having to defend himself in what he calls a "frivolous" action.

Browne, a longtime Democrat, sued the campaign alleging McCain never obtained the proper license to use the track. He is seeking damages for what he asserts are a violation of his publicity rights, copyright infringment and a false endorsement.

Browne was one of several artists, including Van Halen, John Mellencamp, Bon Jovi, the Foo Fighters, Heart and ABBA, who griped about the GOP's unauthorized use of their music during the campaign. Browne was the only one to sue, however.