Jackson Browne v. John McCain et al

Filing 66

ANSWER to Complaint - (Discovery) 1 with JURY DEMAND filed by Defendant The Republican National Committee.(Klein, Howard)

Jackson Browne v. John McCain et al

Doc. 66

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KLEIN, O'NEILL & SINGH, LLP

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. JOHN McCAIN, an individual; THE REPUBLICAN NATIONAL COMMITTEE, a non-profit political organization; THE OHIO REPUBLICAN PARTY, a non-profit political organization Defendants.

CASE NO. CV-08-05334 RGK (Ex)

DEFENDANT THE REPUBLICAN NATIONAL COMMITTEE'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

CASE NO. CV-08-05534 RGK (Ex)
Dockets.Justia.com

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KLEIN, O'NEILL & SINGH, LLP

Defendant Republican National Committee ("RNC") answers the Complaint filed by Jackson Browne ("Plaintiff") as follows: INTRODUCTION 1. Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in the first four sentences of Paragraph 1 of the Complaint, and therefore denies the same. Defendant RNC denies the allegations in the last sentence of Paragraph 1 of the Complaint. 2. Defendant RNC denies that the Ohio Republican Party acted as an agent for

Defendant RNC, as alleged in Paragraph 2 of the Complaint. As to the last sentence in Paragraph 2 of the Complaint, Defendant RNC admits that it did not seek or receive a license from Plaintiff, but Defendant RNC denies that it was required to do so, and Defendant RNC specifically denies having had any involvement in the creation or distribution of the political video that is the subject of this lawsuit. Defendant RNC is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 2 of the Complaint, and therefore denies the same. 3. Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 3 of the Complaint, and therefore denies the same. PARTIES 4. Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 4 of the Complaint, and therefore denies the same. 5. Defendant RNC admits that Defendant McCain is a United States Senator.

Defendant RNC is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 5 of the Complaint, and therefore denies the same. 6. Defendant RNC admits that it is a non-profit political organization with its

principal place of business and headquarters in the District of Columbia, as alleged in Paragraph 6 of the Complaint. 7. 8. Defendant RNC admits the allegations in Paragraph 7 of the Complaint. Defendant RNC denies the allegations in Paragraph 8 of the Complaint.
CASE NO. CV-08-05534 RGK (Ex)

DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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9.

No response to Paragraph 9 is necessary. JURISDICTION AND VENUE

10. 11.

No response to Paragraph 10 is necessary. Defendant RNC denies that Plaintiff has suffered any injury or that Plaintiff is

entitled to any relief by means of the allegations set forth in the Complaint. Defendant RNC avers that the remaining allegations in Paragraph 11 regarding jurisdiction constitute legal contentions and/or conclusions to which no response is required. 12. Defendant RNC avers that the allegations of Paragraph 12 regarding venue

constitute legal contentions and/or conclusions to which no response is required. Defendant RNC denies the remaining allegations in Paragraph 12. STATEMENT OF FACTS 13. Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 13 of the Complaint, and therefore denies the same. 14. Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 14 of the Complaint, and therefore denies the same. 15. Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 15 of the Complaint, and therefore denies the same. 16. Defendant RNC denies that the Ohio Republican Party acted as an agent for, or in

concert with, Defendant RNC at any time relevant to the subject matter of the Complaint, as alleged in the first sentence of Paragraph 16 of the Complaint, and Defendant RNC specifically denies having had any involvement in the creation or distribution of the political video that is the subject of the Complaint. Defendant RNC is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in the first sentence of Paragraph 16 of the Complaint, and therefore denies the same. Defendant RNC further denies the allegations contained in the second sentence of Paragraph 16. Defendant RNC also denies the allegations contained in the last sentence of Paragraph 16. As to the remaining allegations in Paragraph 16, Defendant RNC is without knowledge or information sufficient to form a belief as to their truth, and therefore denies the same.
DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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CASE NO. CV-08-05334 RGK (Ex)

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17.

Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 17 of the Complaint, and therefore denies the same. 18. Defendant RNC admits that it did not seek or obtain Plaintiff's permission to use

the Composition, but denies that it was required to obtain a license or seek or receive permission from Plaintiff to use the Composition, as Defendant RNC had no involvement in the creation or distribution of the political video. Defendant RNC is without knowledge or information sufficient to form a belief as to the truth of the allegation that Plaintiff has never allowed the Composition to be used in any commercial, and therefore denies the same. Defendant RNC denies the remaining allegations in Paragraph 18 of the Complaint. CLAIMS FIRST CAUSE OF ACTION (Copyright Infringement) 19. Defendant RNC responds to the allegations re-alleged and incorporated by

reference in Paragraph 19 of the Complaint in the same manner as set forth hereinabove. 20. Defendant RNC is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 20 of the Complaint, and therefore denies the same. 21. Defendant RNC avers that the allegations in Paragraph 21 concerning Plaintiff's

allegations of infringement constitute legal contentions and/or conclusions to which no response is required; nonetheless, Defendant RNC denies the same. Defendant RNC admits that it did not seek or receive a license or authorization from Plaintiff, but denies that it was required to do so. Defendant RNC specifically denies having had any involvement in the creation or distribution of the political video. 22. 23. 24. Defendant RNC denies the allegations in Paragraph 22. Defendant RNC denies the allegations in Paragraph 23. Defendant RNC denies the allegations in Paragraph 24. SECOND CAUSE OF ACTION (Vicarious Copyright Infringement) 25. Defendant RNC responds to the allegations re-alleged and incorporated by

reference in Paragraph 25 of the Complaint in the same manner as set forth hereinabove.
DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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CASE NO. CV-08-05334 RGK (Ex)

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26. Defendant RNC denies the allegations in Paragraph 26. 27. Defendant RNC denies the allegations in Paragraph 27. 28. Defendant RNC denies the allegations in Paragraph 28. 29. Defendant RNC denies the allegations in Paragraph 29. 30. Defendant RNC denies the allegations in Paragraph 30. 31. Defendant RNC denies the allegations in Paragraph 31. THIRD CAUSE OF ACTION (Federal Trademark Infringement) 32. Defendant RNC responds to the allegations re-alleged and incorporated by reference in Paragraph 32 of the Complaint in the same manner as set forth hereinabove. 33. Defendant RNC is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 33 of the Complaint, and therefore denies the same. 34. Defendant RNC denies the allegations in Paragraph 34. 35. Defendant RNC denies the allegations in Paragraph 35. 36. Defendant RNC denies the allegations in Paragraph 36. 37. Defendant RNC denies the allegations in Paragraph 37. 38. Defendant RNC denies the allegations in Paragraph 38. FOURTH CAUSE OF ACTION (Violation of California Common Law Right of Publicity) 39. Defendant RNC has filed a Notice of Appeal of this Court's Order Denying Defendant RNC's Motion to Strike the Fourth Cause of Action under the California Anti-SLAPP statute, thereby automatically staying further proceeding by this Court on the merits of that Cause of Action. Therefore, no response to Plaintiff's Fourth Cause of Action (Violation of California Common Law Right of Publicity - Paragraphs 39-43 of the Complaint) is required or would be appropriate until Defendant RNC's appeal is resolved. Defendant RNC reserves the right to amend its Answer accordingly upon resolution of the appeal. DEFENDANT RNC'S FURTHER ANSWERS AND AFFIRMATIVE DEFENSES

DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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40. Defendant RNC denies the remaining allegations of the Plaintiff's Complaint, including Paragraphs 1 ­ 16 constituting the Prayer for Relief and All Causes of Action, because Plaintiff is not entitled to any of the relief sought by means of the Complaint, under any theory. 41. Defendant RNC has not knowingly or intentionally waived any applicable

affirmative defenses and reserves the right to assert any other defense that may become available or appear during the discovery proceedings or otherwise in this case. Defendant RNC further reserves the right to amend its answer and/or affirmative defenses accordingly. By setting forth any particular defenses below, Defendant RNC does not thereby assume an affirmative burden of proof as to that defense, but rather relies on applicable law governing which party has the burden of proof and what such burden is. 42. In addition to its own affirmative defenses stated below, Defendant RNC hereby

adopts and incorporates by reference any affirmative defenses asserted by any other Defendant to this action, to the extent such affirmative defenses applies to Defendant RNC. First Affirmative Defense 43. Plaintiff has failed to state a claim upon which relief should be granted. Second Affirmative Defense 44. Plaintiff's state law claim is preempted by the federal copyright law since the

allegedly infringing acts fall within the subject matter of copyright as described in 17 U.S.C. §§ 102 and 103 and the rights asserted under the state law are equivalent to the rights contained in 17 U.S.C. § 106. Third Affirmative Defense 45. Plaintiff's federal trademark infringement claim is barred, in whole or in part,

since neither Plaintiff's identity and persona nor the Composition have secondary meaning and do not afford Plaintiff any enforceable trademark. Fourth Affirmative Defense 46. Plaintiff's federal trademark infringement claim is barred because even if Plaintiff

has an enforceable trademark in Plaintiff's identity and persona or the Composition, no trademark use has been made of such alleged trademark, as the Commercial neither advertises "goods,
DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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CASE NO. CV-08-05334 RGK (Ex)

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services or commercial activities" nor constitutes "commercial advertising or promotion" within the meaning of 15 U.S.C. § 1125(a)(1). Fifth Affirmative Defense 47. Defendant RNC is not the real party in interest, to the extent that Defendant RNC

did not sponsor or pay for the Commercial that is the subject of this litigation, nor did Defendant RNC act in concert with the Ohio Republican Party or the McCain campaign to create the Commercial. Sixth Affirmative Defense 48. Plaintiff's claims are barred because Defendant RNC had no right nor ability to

supervise the allegedly infringing acts, Defendant RNC had no obvious and direct financial interest in the allegedly infringing acts, and Defendant RNC otherwise took no steps to foster, promote, entice, or encourage infringement. Seventh Affirmative Defense 49. Defendant RNC has made no profit as a result of the allegedly infringing acts,

including any profit under 17 U.S.C. §504(b) that is attributable to the alleged copyrighted Composition. Eighth Affirmative Defense 50. Plaintiff's claims of copyright infringement pursuant to 17 U.S.C. § 106(4) are

barred with respect to any public performance of the Commercial on television networks, as such performances occurred pursuant to licenses. Ninth Affirmative Defense 51. is fair use. Tenth Affirmative Defense 52. Plaintiff's claims of copyright infringement pursuant to 17 U.S.C. § 106(4) are Plaintiff's claims are barred because the use of the Composition in the Commercial

barred with respect to any public performance of the Commercial on television news programs, blogs, web sites, and other media, as such performances constituted fair use, as set forth in 17 U.S.C. § 107.
DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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CASE NO. CV-08-05334 RGK (Ex)

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Eleventh Affirmative Defense 53. Plaintiff's claims for copyright infringement pursuant to 17 U.S.C. § 106(4) are

barred because the Composition was not publicly performed. Twelfth Affirmative Defense 54. Plaintiff's claims are barred because the use of the Composition in the Commercial

is constitutionally protected by the First Amendment of the United States Constitution. Thirteenth Affirmative Defense 55. Plaintiff's claims for violation of the California Common Law Right of Publicity

are barred because the use the Composition in the Commercial is constitutionally protected by the First Amendment inasmuch as it contains significant transformative elements and that the value of the Commercial does not derive primarily from the Plaintiff's fame. Fourteenth Affirmative Defense 56. Plaintiff's claims for violation of the California Common Law Right of Publicity

are barred because the use of the Composition in the Commercial is constitutionally protected by the First Amendment as it is non-commercial, political expression. Fifteenth Affirmative Defense 57. Plaintiff's alleged copyright registration is invalid or unenforceable due to the

failure to comply with the requirements of Title 17 of the United States Code. Sixteenth Affirmative Defense 58. Plaintiff's alleged ownership of the alleged federally registered copyright in the

Composition is denied. Seventeenth Affirmative Defense 59. Plaintiff's claims are barred as Plaintiff lacks standing under 17 U.S.C. §501(b) to

bring this action. // // // //
DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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CASE NO. CV-08-05334 RGK (Ex)

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Eighteenth Affirmative Defense 60. Defendant RNC expressly denies that it performed any of the allegedly infringing

acts, but any use of copyrighted material by Defendant RNC was de minimus and thereby does not constitute an infringement. Nineteenth Affirmative Defense 61. Defendant RNC expressly denies that it performed any of the allegedly infringing

acts, but in the unlikely event that the trier of fact so finds, Defendant RNC's performance of any of the allegedly infringing acts was done with innocent intent. Twentieth Affirmative Defense 62. Any award of injunctive relief is not reasonable in view of the facts of this case. Twenty First Affirmative Defense 63. Plaintiff's claims are barred, in whole or in part, because any alleged damages are

speculative, uncertain, and impossible to ascertain or allocate. Twenty Second Affirmative Defense 64. Plaintiff's claims are barred, in whole or in part, due to the absence of any injury

or damage as a result of the matters alleged in the Complaint. To the extent that Plaintiff has suffered injury or damage, which Defendant RNC expressly denies, Defendant RNC further avers that any such injury or damage was not by reason of any act or thing done by Defendant RNC. Twenty Third Affirmative Defense 65. Plaintiff has not suffered any recoverable damages as a result of the allegedly

infringing acts of Defendant RNC, including that Plaintiff has not suffered any damages under 17 U.S.C. §504(a) as a result of the alleged copyright infringement of Defendant RNC. Twenty Fourth Affirmative Defense 66. Any damages and profits sought by Plaintiff are limited, in whole or in part,

pursuant to 17 U.S.C. §504(b) and exclude deductible expenses and any elements of profit attributable to factors other than the alleged copyrighted Composition. // //
DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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Twenty Fifth Affirmative Defense 67. Any statutory damages sought by Plaintiff pursuant to 17 U.S.C. §504(c) are

limited, in whole or in part, because any alleged infringement was not committed willfully. Twenty Sixth Affirmative Defense 68. Any damages suffered by Plaintiff were incurred as a direct and proximate result

of Plaintiff's own failure to take all reasonable actions or to use reasonable diligence to properly mitigate such damages. Twenty Seventh Affirmative Defense 69. laches. Twenty Eighth Affirmative Defense 70. Plaintiff's claims are barred, in whole or in part, on the grounds that the claims are Plaintiff's claims are barred by the doctrines of misuse, waiver, estoppel and

frivolous, unreasonable, not brought in good faith and groundless and, accordingly, Defendant RNC is entitled to recover all costs and attorney's fees incurred herein. Twenty Ninth Affirmative Defense 71. Upon information and belief, Plaintiff's request for equitable relief should be

denied due to Plaintiff's own inequitable conduct, unclean hands, and misrepresentations, as well as because Plaintiff has an adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, Defendant respectfully prays as follows: 1. prejudice; 2. 3. That Plaintiff takes nothing by the way of this action; That judgment be entered in favor of Defendant RNC as to all causes of action That the Complaint, at least with respect to Defendant RNC, be dismissed with

asserted against it; 4. That Plaintiff be ordered to pay all of Defendant RNC's costs associated with this

action, including attorneys' fees, incurred in defense of the action; and
DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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5.

That this Court grants such other and further relief as may be just and appropriate. JURY DEMAND

Defendant RNC, pursuant to Federal Rule of Civil Procedure, Rule 38(b), demands a jury trial of all triable issues.

DATED: March 10, 2009

KLEIN, O'NEILL & SINGH, LLP

By /s/ Howard J. Klein Howard J. Klein Attorneys for Defendant, THE REPUBLICAN NATIONAL COMMITTEE

DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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CERTIFICATE OF SERVICE I hereby certify that on March 10, 2009, 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

DEFENDANT RNC'S ANSWER TO PLAINTIFF JACKSON BROWNE'S COMPLAINT

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CASE NO. CV-08-05334 RGK (Ex)