## Facts

- In the 2008 U.S. presidential election, Republican Senator John McCain ran against Democratic Senator Barack Obama.
- Jackson Browne is a well-known musician and the owner of a federally registered copyright in the musical composition “Running on Empty,” a work widely associated with Browne.
- A negative campaign commercial targeting Obama was created for McCain and the Republican National Committee (RNC) by the Ohio Republican Party.
- The commercial used “Running on Empty” as background music, including Browne’s voice, without Browne’s permission.
- The commercial identified the Ohio Republican Party as the source of the advertisement.
- Browne, a public supporter of Democratic candidates, alleged that using his song and voice in the McCain-related advertisement falsely suggested his sponsorship of or affiliation with McCain and the RNC.
- Browne sued McCain and related defendants asserting claims that included copyright infringement and a Lanham Act § 43(a) false endorsement / false association claim.
- In this decision, the court addressed the RNC’s motion to dismiss for failure to state a claim.

## Issues

1. Does a Lanham Act § 43(a) false endorsement claim fail as a matter of law because the challenged use occurred in a political campaign advertisement rather than a traditional commercial advertisement?
2. Does the First Amendment require dismissal at the pleading stage of a Lanham Act false endorsement claim based on alleged misleading implication of endorsement in political speech?
3. Did Browne plead sufficient facts to plausibly allege likely confusion as to his sponsorship, approval, or affiliation with the RNC and the McCain campaign?

## Decision

- The court denied the RNC’s motion to dismiss for failure to state a claim.
- The court held that Lanham Act § 43(a) is not categorically limited to purely commercial advertising and may apply where a political advertisement allegedly suggests a false endorsement.
- The court held that the First Amendment did not require dismissal at the pleading stage where the complaint alleged misleading implication of sponsorship or approval.
- The court found Browne plausibly alleged likely confusion as to endorsement based on the use of a song and vocal performance strongly identified with him in a McCain-related campaign commercial.

## Legal Principles

- A Lanham Act § 43(a) false endorsement claim requires plausibly alleging a use in commerce that is likely to cause confusion about the plaintiff’s affiliation, connection, sponsorship, or approval.
- Section 43(a) is not automatically inapplicable merely because the challenged speech is political; a political context does not, by itself, bar a claim alleging misleading endorsement.
- The First Amendment does not provide blanket protection for uses that allegedly mislead the public about endorsement; whether speech is protected may depend on factual context not suited for resolution on a Rule 12(b)(6) record.
- Likelihood of confusion is commonly fact-intensive; at the motion-to-dismiss stage, the court asks whether the pleaded facts make confusion plausible, not whether the plaintiff has proved confusion.

## Conclusion

Browne v. McCain, 612 F. Supp. 2d 1125 (C.D. Cal. 2009) denied the RNC’s motion to dismiss, holding that a Lanham Act § 43(a) false endorsement theory can be stated based on a political campaign advertisement when the plaintiff plausibly alleges that the unauthorized use of a well-known song and vocal performance could mislead viewers into believing the artist sponsored or approved the candidate or committee.


Browne v. McCain, 612 F. Supp. 2d 1125 (2009)