Jackson Browne v. John McCain et al

Filing 19

NOTICE OF MOTION AND MOTION to Dismiss Case Under FRCP 12(b)(6) filed by Defendant John McCain. Motion set for hearing on 12/8/2008 at 09:00 AM before Judge R. Gary Klausner. (Bandlow, Lincoln)

Jackson Browne v. John McCain et al

Doc. 19

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SSAB LLP

SPILLANE SHAEFFER ARONOFF BANDLOW LLP Lincoln D. Bandlow (SBN 170449) 1880 Century Park East, Suite 1004 Los Angeles, CA 90067-2627 Telephone: [phone] Fax: [phone] [e-mail] Attorneys for Defendant JOHN MCCAIN

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JACKSON BROWNE., an individual Plaintiff, vs. CASE # CV08-05334 RGK (Ex) DEFENDANT JOHN MCCAIN'S NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(6)

JOHN MCCAIN, an individual; THE REPUBLICAN NATIONAL COMMITTEE, a non-profit political organization; THE OHIO REPUBLICAN Hearing: Date: December 8, 2008 PARTY, a non-profit political Time: 9:00 a.m. organization, Place: Courtroom 850 Defendants.

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DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS
Dockets.Justia.com

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SSAB LLP

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 8, 2008, at 9:00 a.m., or as soon thereafter as counsel may be heard, in Courtroom 850 of the above-entitled Court, the Honorable R. Gary Klausner presiding, located at 255 East Temple Street, Los Angeles, California 90012, Defendant John McCain ("McCain") will and hereby does move the Court pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for an order dismissing the Complaint, and each claim for relief contained therein, filed by Plaintiff Jackson Browne ("Browne"). This Motion is made following the conference of counsel pursuant to Central District Local Rule 7-3, which took place on October 6, 2008 and is made on the following grounds: 1. Browne's first and second claims for relief for Copyright Infringement and Vicarious Copyright Infringement, respectively, both under 17 U.S.C. § 106(4), fail as a matter of law under the fair use doctrine; 2. Browne's third claim for relief, for violation of Lanham Act § 43(a), 15 U.S.C. §1125(a), fails to state a claim upon which relief can be granted for the following independent reasons: a. The Lanham Act does not apply to political speech, such as that contained in the Political Video that is the subject of this action; b. The claim is barred as a matter of law under the First Amendment and "artistic relevance" test; c. The claim is barred because there can be no likelihood that consumers would be confused into believing that the Political Video that is the subject of this action was sponsored by or affiliated with Browne; 3. Browne's fourth claim for relief, for common law violation of Browne's right of publicity, fails to state a claim upon which relief can be granted for the following independent reasons: 2
DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS

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a. Browne's claim fails because the Political Video that is the subject of his claim is non-commercial speech that relates to a matter of public interest; b. The Political Video that is the subject of his claim is subject to full and stringent protection under the First Amendment, which bars the claim; c. The use of Browne's voice in the Political Video was transformative thereby precluding liability; and d. Browne cannot show that McCain used Browne's voice. The foregoing grounds are addressed in detail in the concurrently-filed Memorandum of Points and Authorities. This Motion is based on this Notice, the Memorandum of Points and Authorities, the concurrently-filed Request For Judicial Notice ("RFJN"), the concurrently-filed Notice of Motion and Special Motion to Strike Under C.C.P. § 425.16 and its supporting Memorandum of Points and Authorities, on all papers, pleadings, records and files in this case, on all other matters of which judicial notice may be taken, and on such other evidence and/or argument as may be presented to the Court on the hearing of this Motion. McCain respectfully requests that the Court dismiss Browne's Complaint, and each claim for relief contained therein, with prejudice. Dated: November 17, 2008 SPILLANE SHAEFFER ARONOFF BANDLOW LLP

By:

Lincoln D. Bandlow

Attorneys for Defendant JOHN MCCAIN

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SSAB LLP DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS