Jackson Browne v. John McCain et al

Filing 27

NOTICE OF MOTION TO DISMISS UNDER FRCP 12(b)(6) filed by DEFENDANT The Republican National Committee. (Dang, Sang)

Jackson Browne v. John McCain et al

Doc. 27

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HOWARD J. KLEIN (NO. 77029) [e-mail] THEODORE P. LOPEZ (NO. 191328) [e-mail] SANG N. DANG (NO. 214558) [e-mail] KLEIN, O'NEILL & SINGH, LLP 43 Corporate Park Suite 204 Irvine, CA 92606 Telephone: [phone] Facsimile: 949-955-1921 Attorneys for Defendant, THE REPUBLICAN NATIONAL COMMITTEE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ­ LOS ANGELES JACKSON BROWNE., an individual Plaintiff, vs. CASE # CV08-05334 RGK (Ex) DEFENDANT THE REPUBLICAN NATIONAL COMMITTEE'S NOTICE OF 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: PARTY, a non-profit political organization, Date: December 8, 2008 Time: 9:00 a.m. Defendants. Place: Courtroom 850 Judge: Hon. R. Gary. Klausner

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

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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 The Republican National Committee ("RNC") 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: 1
DEFENDANT RNC'S NOTICE OF 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; and c. The use of Browne's voice in the Political Video was transformative thereby precluding liability. This Motion is based on this Notice and the concurrent-filed supporting Memorandum of Points and Authorities, the concurrently-filed Joint Request For Judicial Notice ("RFJN"), the RNC's concurrently-filed Special Motion to Strike Under C.C.P. § 425.16, 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. The RNC respectfully requests that the Court dismiss Browne's Complaint, and each claim for relief contained therein, with prejudice.

DATED: November 17, 2008

KLEIN, O'NEILL & SINGH, LLP By /s/ Howard J. Klein Howard J. Klein Attorneys for Defendant, THE REPUBLICAN NATIONAL COMMITTEE

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DEFENDANT RNC'S NOTICE OF MOTION TO DISMISS

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CERTIFICATE OF SERVICE I hereby certify that on November 17, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of the filing to all counsel of record. /s/ Sang N. Dang Sang N. Dang

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DEFENDANT'S NOTICE OF MOTION TO DISMISS