Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association
May 2013 Vol. 36, No. 3
MCLE Article: Songs in Contention
Copyright holders have begun to challenge the customary appropriation of songs for political campaigns
By Jana Moser
Jana Moser practices entertainment and intellectual property law with the Law Offices of Gerard Fox, Inc., in Century City.
By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.
The first presidential candidate had a theme song. George Washington's was 'Follow Washington." Thomas Jefferson blasted John Adams by referring to the Alien and Seditions Acts as a 'reign of terror" in 'Jefferson and Liberty," while Adams warned that 'Slavery's comin', knavery's comin' / plunder's comin'...If John Quincy not be comin'!" in 'Little Know Ye Who's Coming." In 1932, Franklin Roosevelt adopted an existing song for his campaign. Following an immediately panned speech by Judge John E. Mack, who was introducing Roosevelt, his political advisers demanded that a song be played to act as a buffer before he took the stage. They selected 'Happy Days Are Here Again" from the 1930 musical Chasing Rainbows, and it became the theme of Roosevelt's campaign and the Democratic Party for several years. Following Roosevelt, several politicians began appropriating Broadway show tunes for their theme songs. In 1952, Irving Berlin--author of 'White Christmas," 'God Bless America," and 'There's No Business Like Show Business"--modified a song from the musical Call Me Madam as Dwight Eisenhower's campaign hit 'They Like Ike." The song proved to be an instant hit, resulting in the slogan I Like Ike appearing on campaign buttons, posters, and pamphlets, and leading to the follow-up tunes 'I Still Like Ike" and 'Ike for Four More Years."The first presidential candidate to receive some backlash for unauthorized appropriation of Broadway tunes was Republican nominee Barry Goldwater, whose 1964 campaign commissioned a rewrite of the song 'Hello, Dolly." The musical's producer, David Merrick (a Democrat), notified the campaign that it was violating copyright law. Notably, Goldwater's opponent, Lyndon Johnson, successfully asked an original Dolly cast member to perform 'Hello, Lyndon" at the 1964 Democratic National Convention in Atlantic City. This appropriation went without complaint. Since that time, politicians have increasingly experienced complaints from artists who have not condoned a particular use of their songs. Recent examples include Newt Gingrich's use of Survivor's 1982 hit 'Eye of the Tiger," Mitt Romney's use of K'Naan's 'Wavin' Flag," and Michele Bachmann's use of Tom Petty's 'American Girl."1There are several reasons for the increase in artist complaints about the unauthorized use of music in political campaigns. First, the phenomenon is widely reported. The more that publications report on artist complaints, the more aware people become of the issue. Artists, in turn, may be more likely to assert their intellectual property or moral rights against politicians whose political agendas do not match their own. Additionally, artists' lawyers are becoming increasingly creative in drafting cease-and-desist letters to political campaigns, with some adopting newsworthy language. In the famous letter from the Silversun Pickups to presidential candidate Mitt Romney, counsel stated, 'As the former governor [of] the state of Massachusetts, a graduate of Harvard Law School, and candidate for U.S. President, we're pretty sure you are familiar with the laws of this great country of ours. We're writing because we, like you, think these laws are important."2 The cease-and-desist letter to Romney was itself newsworthy, but the letter also became famous in its own right for its similarities in style and wording to a letter sent on behalf of guitarist Joe Walsh to a Republican congressional candidate also named Joe Walsh.3 Finally, social media are changing the way Americans experience political campaigns. News stories, reactions, and commentaries are spilled into social media in a real-time national conversation, allowing stories to spread in a way heretofore unseen. While those with legal backgrounds may weigh in on artist complaints with insight about proper music licensing, the general public forms and expresses opinions based on an artist's right to choose what is done with his or her music.In light of the publicity that artists' demands are receiving, it is surprising that so few lawsuits have been filed. One reason for this may stem from the nature of politics. Politicians rely on popular opinion to win an election, so they may perceive the costs of opposing an artist in court as outweighing the benefits associated with using the music to conjure excitement and support from constituents. This affords artists a great deal of leverage when requesting that a politician cease using a musical work in a campaign, even when the law may not necessarily be on the artist's side. On the other hand, politicians may feel they have little to lose by opposing an artist's claim in court. For example, California senator Charles DeVore argued unsuccessfully that his use of songs released on Don Henley's 1984 Building the Perfect Beast in a series of campaign videos was fair use.4CopyrightAdvances in technology have increased the potential for liability that politicians face. Politicians no longer rely solely on campaign appearances or static advertising through posters, slogans, and signs. Campaigns now rely on videos distributed over the Internet. Thus, for example, John McCain's 2008 campaign received complaints from musical artists Jackson Browne, John Cougar Mellencamp, ABBA, the Foo Fighters, Van Halen, Frankie Valli, Bon Jovi, and Heart for the campaign's use of music. The McCain campaign also was sued by singer-songwriter Jackson Browne for copyright infringement and related claims over a Web video that criticized Barack Obama's energy policy while Browne's 'Running on Empty" played in the background.5 As politicians continue to use music for the dual purposes of campaign appearances and videos, they will have to consider the extent of possible liability for both, and whether traditional defenses protect those uses.In the campaign scenario, a politician typically makes an entrance to a song designed to characterize and elevate the politician's public persona and agenda. Thus, for example, in 2008 Sarah Palin, whose high school nickname was Sarah Barracuda, adopted Heart's 'Barracuda" during the Republican National Convention. Heart's lead singers, Ann and Nancy Wilson, immediately requested that the Republican campaign cease its use of the song, stating, 'The Republican campaign did not ask for permission to use the song, nor would they have been granted that permission. We have asked the Republican campaign publicly not to use our music. We hope our wishes will be honored."6 The McCain-Palin campaign refused to cease its use of 'Barracuda," however, and the Wilson sisters further condemned Palin's use of the song through a public statement:
Sarah Palin's views and values in NO WAY represent us as American women. We ask that our song 'Barracuda" no longer be used to promote her image. The song 'Barracuda" was written in the late 70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The 'barracuda" represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there's irony in Republican strategists' choice to make use of it there.7 Typically, the unauthorized use of a song would subject the user to potential liability for copyright infringement, warranting compliance with a cease-and-desist issued by the copyright holder. In Palin's case, however, the McCain campaign had obtained licenses to play the song through a performing rights organization (PRO), which licenses the public performance of musical works on behalf of the copyright owner. Examples of PROs include the American Society of Composers, Authors, and Publishers (ASCAP); Broadcast Music, Incorporated; and the Society of European Stage Authors and Composers. Obtaining the license for 'Barracuda" through ASCAP allowed the McCain campaign to freely use the song without first seeking Heart's permission.Alternatively, a political campaign can rely on licenses held by the venue itself for use of a song. In that case, the license is held by the venue (for instance, a sporting arena) and applies to all events that take place there. This presents a greater potential for liability in the case of a political campaign, however, because venue licenses are often limited to a specific type of event, for example, hockey or basketball games. If a political campaign utilizes a song licensed for a sporting event but not for a political rally, that campaign will potentially be subject to copyright liability for its unauthorized use of the song.Another limitation of a PRO license is in the substance of the license itself. As the words 'performing rights organization" suggest, a PRO licenses the right to perform a song; it does not grant the right to use the song in an advertisement or a promotional video. Thus, a politician requires a separate synchronization license from the publisher to use the song in an ad. McCain's 2008 campaign demonstrated precisely this problem when it used 'Running on Empty" in a widely circulated ad without obtaining a synchronization license. In the ad, the Republican National Committee (RNC), the Ohio Republican Committee, and McCain mock Obama's suggestion that the country could conserve gasoline by keeping automobile tires properly inflated, while Browne's 'Running on Empty" plays in the background. Displeased by his involuntary association with the Republican Party, Browne filed suit in the Central District of California alleging copyright infringement, vicarious copyright infringement, violation of the Lanham Act, and violation of California's common law right of publicity.8 As the complaint notes, 'Defendants did not obtain a license, or seek or receive Browne's permission to use the Composition in the Commercial."The McCain campaign did not deny that it had not first sought a license for its use of 'Running on Empty." Rather, the campaign argued that the song's use in the video qualified as fair use:
Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule 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.9McCain moved to dismiss the complaint on this ground, arguing that the fair use doctrine barred Browne's copyright claim as a matter of law.10 As the court noted, however, courts analyze fair use as a mixed question of law and fact. Consequently, a court must typically make factual determinations or rely on undisputed or admitted material facts to conduct the fair use analysis. Because a motion to dismiss is limited to allegations in the complaint, and the court does not make factual findings or deem facts undisputed or admitted, fair use is rarely analyzed at a preliminary stage. The Browne court followed this precedent and declined to analyze fair use on McCain's motion to dismiss. As the court noted, 'The mere fact that Plaintiff's claim is based on Defendants' use of his copyrighted work in a political campaign does not bar Plaintiff's claim as a matter of law."11 Although the fair use question might have been addressed at the summary judgment stage of the litigation, the validity of this argument was never tested in court because the parties settled in 2009, and McCain issued a formal apology.12McCain was not entirely unfounded in his motion to dismiss on the basis of fair use, however. In Keep Thomson Governor Committee v. Citizens for Gallen Committee, a political committee brought suit against its adversary for copyright infringement after the adversary used a 15-second sample of a song that the plaintiff had specially commissioned, and in which the plaintiff owned all copyright interests.13 At the request of the defendants, the court held a hearing on whether the plaintiff was entitled to injunctive relief to enjoin the defendants' mocking use of the sample.14 While acknowledging the plaintiff's exclusive right to duplicate or prepare a derivative use of the copyrighted work in its advertisement, the court stated, '[T]he exclusive right of a copyright holder must be weighed against the public's interest in dissemination of information affecting areas of universal concern."15 However, the court also emphasized the First Amendment implications at issue in the case:
In the context of this case, the Court must be aware that it operates in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Although First Amendment protection is not confined to the exposition of ideas, there is practically universal agreement that the major purpose of that Amendment was to protect the free discussion of governmental affairs, including discussions of candidates.Addressing the first factor of fair use, or the purpose and character of the use, the court stated that the defendants' use of the plaintiff's political advertisement was 'clearly part of a political campaign message, noncommercial in nature, and First Amendment issues of freedom of expression in a political campaign are clearly implicated."16 As for the nature of the copyrighted work, the court noted that it was itself part of a political campaign message. The court found the amount and substantiality of the portion used in relation to the copyrighted work as a whole was negligible, as the infringing work took only 15 seconds of a three-minute recording, and the effect of the use on the copyrighted work's potential market was similarly 'nil."17Though the Keep Thomson court's analysis suggests that politicians may enjoy a decidedly lenient privilege in their use of copyrighted works for political advertisements, more recent court decisions have not shared the Keep Thomson court's emphasis on the First Amendment. In Henley v. DeVore, musician Don Henley claimed that politician Charles DeVore infringed the copyrighted songs 'The Boys of Summer" and 'All She Wants to Do Is Dance" with two political advertisements featuring variations on those songs, called 'The Hope of November" and 'All She Wants to Do Is Tax."18 DeVore worked with his Internet strategist, Justin Hart, to utilize the plays on Henley's songs during his 2010 campaign for one of California's seats in the U.S. Senate. In the 'The Hope of November" video, Hart downloaded a karaoke version of 'The Boys of Summer," supplied the vocals in Henley's style, and produced the video by compiling images of Obama, Nancy Pelosi, and a few others.19 After Henley learned of DeVore's video, he sent YouTube a takedown notice pursuant to the Digital Millennium Copyright Act, with which YouTube promptly complied. DeVore then sent a counter-notification to YouTube, requesting that the video be reposted on the ground that it constituted parody.20 Around this time, the DeVore campaign released the 'All She Wants to Do Is Tax" video, which criticized Barbara Boxer and cap-and-trade and global-warming policies.21 As with 'The Hope of November," Hart supplied vocals and paired the song with a video he created using online images and videos of Boxer, Al Gore, and the Disney character Scrooge McDuck.22 Henley filed suit shortly thereafter, and the parties eventually made it to summary judgment regarding DeVore's contention that his use of the songs constituted fair use.The Henley court's analysis deviates from the Keep Thomson's tone almost immediately. Rather than wax poetic about First Amendment principles, the Henley court noted that fair use has been described as 'a privilege" that allows artists 'to improve upon, comment on, or criticize prior works."23 Rather than merely recite the Copyright Act's four fair use factors verbatim, as did the Keep Thomson court, the Henley court explained the meaning courts have ascribed to the four factors. Examining the first factor, which is the purpose and character of the use, the court noted that courts consider the extent to which the new work is 'transformative," or adds something new, with a further purpose or different character, as well as whether the new work was for or not for profit. The court noted that in the context of the fair use analysis, parody has been considered transformative because it provides socially valuable criticism or commentary of the subject work.24 The second factor--the nature of the copyrighted work--reflects a recognition that creative works are 'closer to the core of intended copyright protection" than informational and functional works.25Parodies are permitted to draw from the most creative expressions because they 'almost invariably copy publicly known, expressive works."26 The third factor concerns whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of copying. The parodist needs to use at least some portion of the original because the effectiveness of the parody depends on its ability to mimic or 'conjure up" the original. Finally, the court explained that the fourth factor asks whether actual market harm has resulted from the defendant's use, and whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original or its derivatives. Because the author is unlikely to permit the use of his of her work to criticize or ridicule that work, a parody is unlikely to supplant the market for the original or its derivatives.Addressing the argument of the DeVore defendants that their works constituted parody, the court held that the defendants' use of the songs constituted satire, not parody. The defendants borrowed from the plaintiff's work not to comment on the plaintiff or his work but rather to address separate subjects, i.e., Obama and his supporters in the case of 'The Hope of November" and Boxer, taxation, global warming, and the proposed cap-and-trade program in the case of 'All She Wants to Do Is Tax."27 As to amount and substantiality, the court noted that it was 'undisputed" that both 'The Hope of November," and 'All She Wants to Do Is Tax" borrowed heavily from the originals.28 Karaoke tracks formed the background of each song, while Hart supplied vocals with different lyrics. The melodies, rhyme scheme, and syntax of the originals and imitations were identical.29 Because 'All She Wants to Do Is Tax" was 'almost entirely" satirical in nature, it lacked the parody justification for the extent of its appropriation.30 Although the court acknowledged that 'The Hope of November" might have a greater parodic character than 'All She Wants to Do Is Tax," it nevertheless stated that the song's copying went far beyond what was 'reasonably necessary" and noted that it far surpassed the amount previously found to be fair use for a parody.31Finally, the court found a likelihood of negative impact on the market for the originals because advertisers might be deterred from using Henley's music because it had been used before, and because the satirical nature of 'All She Wants to Do Is Tax" might supplant the market for satirical versions of 'The Boys of Summer."32The difference between the Keep Thomson court's and the Henley courts' analyses is likely attributable to more than simply a different set of factual circumstances. As leading copyright experts have noted, the fair use analysis is increasingly falling into common patterns of cases, which have been called policy-relevant clusters.33 A court will more likely determine that an infringing use is fair use when the infringer has criticized or commented on the original work, rather than merely relied on the goodwill of a popular song. If the commentators are correct, and cases like Henley are representative of the fair use analysis vis-à-vis political advertisements utilizing songs to convey their messages, political campaigns will need to diligently secure appropriate licenses to avoid costly litigation. This includes a synchronization license issued from the music publisher and, if the original or master recording is used, a master use license issued from the record company.TrademarkEven if a politician secures the appropriate licenses to use a particular song, he or she may nevertheless face opposition by an artist who does not want his or her music associated with that politician or political ideology. One argument the artist may utilize is that by using the song, the politician is falsely suggesting that he or she is sponsored or endorsed by the artist. Such a claim is grounded in trademark law under Section 43(a) of the Lanham Act, which protects against false representations regarding the origin, endorsement, or association of goods or services through the wrongful use of another's distinctive mark, name, trade dress, or other device.34This argument was asserted by Browne in Browne v. McCain, who claimed that McCain 'intentionally used Browne's identity and persona in the Commercial to confuse the public into thinking that Browne sponsors, endorses, and is associated with Defendants, and specifically McCain, when they knew that Browne does not endorse or sponsor Defendants or McCain."35 As with the copyright claim, McCain moved to dismiss this claim on the ground that the Lanham Act applies only to commercial speech and cannot be asserted if the context of the speech is political. As the court noted, however, the Lanham Act applies to both commercial and noncommercial speech.36 Moreover, the court stated, the political arena is one in which consequences of consumer confusion can be most dire; as such, the court rejected the argument that a plaintiff may not assert a Lanham Act violation for the unauthorized use of songs in political campaigns.37McCain also argued that Browne could not assert a Lanham Act claim because the song was used in an expressive work, and thus was barred under the First Amendment and artistic relevance test.38 The Ninth Circuit analyzes a Lanham Act claim based on use of a mark in an artistic work under the Second Circuit's Rogers artistic relevance test, developed to address the competing interests of the First Amendment's protection of artistic works and trademark protection. Under this test, an artistic work's use of a trademark that otherwise would violate the Lanham Act is not actionable 'unless the [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it] explicitly misleads as to the source or the content of the work."39 The court found that Browne's claim was not barred under the First Amendment and artistic relevance test for several reasons. First, McCain had not shown that the commercial was an artistic work, requiring application of the test in the first instance. Second, the First Amendment and artistic relevance test does not bar a Lanham Act claim merely because the work at issue is based on noncommercial, political speech. Finally, the court noted that in any case, it would have difficulty applying the artistic relevance test at the motion to dismiss stage.Notably, the strength of an artist's trademark claim will depend largely on the extent to which the politician utilized the artist's song. Courts are unlikely to find a genuine case for false endorsement if a politician has used a song only once or twice at isolated events. On the other hand, if a politician embraces a song (for instance, the McCain campaign's recurring use of 'Barracuda" to introduce Palin), there is a greater possibility that the song or artist will be associated with the politician in the public's mind. As cease-and-desist letters and public statements indicate, this is precisely the sort of false association they are concerned with protecting against in the first instance.Right of PublicityFinally, an artist can argue that the politician's unauthorized use of music constitutes a violation of his or her right of publicity under state law. Like trademark, even if a campaign purchases public performance licenses from the PROs (and is therefore legal from a copyright perspective), it may still be infringing an artist's right of publicity. Though not all states recognize a cause of action for right of publicity, as of this writing, nineteen states recognize the right of publicity via statutes, while twenty-eight recognize a common law right of publicity. In California, a plaintiff must show the defendant knowingly used his or her likeness for a commercial purpose, without permission, resulting in damages.40 While several courts have found that an artist's right of publicity is violated when his or her songs or likeness is used without authorization,41 the unauthorized use of music in political campaigns presents the possibility that some uses may constitute protected speech.Nevertheless, at least one court has dismissed the argument that as political speech, a campaign's use of a song is protected as a valid exercise of free speech. In Browne, Browne asserted a right of publicity claim, stating, 'Browne's distinct and readily identifiable voice is widely known and associated with Browne. As such, Defendants' unauthorized use of Browne's voice in the Commercial invoked Browne's identity in the minds of the public."42 Recognizing the possibility that McCain's use of Browne's song might be protected as free speech, the RNC brought a special motion to strike Browne's common law right of publicity claim under California's Anti-SLAPP statute.43 Under this statute, a defendant may make a special motion to strike a state law claim designed to chill the valid exercise of free speech.44 According to RNC, Browne's right of publicity should have been struck because it had shown that the claim was based on protected activity under the anti-SLAPP statute, and Browne had not established a probability of success on his claim.45 The court found that Browne's right of publicity claim was based on protected activity, meaning that it was made in connection with a public issue or issue of public interest (namely, the 2008 presidential candidates and their energy policies) in furtherance of the defendant's constitutional right of free speech.46However, defining 'probability of success" as 'a mere possibility of success," the court found that Browne had met his burden on his right of publicity claim.47 The court noted that RNC had used Browne's identity by utilizing his song in its commercial, and Browne's voice was sufficiently recognizable.48 The use of Browne's song increased the amount of attention that the media paid to McCain's candidacy, meeting the second element for a right of publicity claim. Browne did not consent to this use, and the court found there was injury because RNC's use of the song gave the false impression that Browne was associated with or endorsed McCain's presidential candidacy.49 As such, the court held that Browne had indeed met his burden of establishing a probability of success for his right of publicity claim.This case demonstrates the high burden that politicians will have to meet when facing an artist's right of publicity claim. As with copyright and trademark law, a campaign cannot simply shield itself behind the protection of political speech. The obvious solution is to avoid the potential for liability in the first instance by securing the artist's permission to use his or her work.The news stories and case law reveal a push and pull between artists and politicians when the latter use the former's work to promote their campaign efforts. Oftentimes, politicians have secured the appropriate copyright licenses only to face public ridicule by artists or, as is becoming increasingly common, cease-and-desist letters, and even lawsuits. On the other hand, artists may have valid trademark and right of publicity claims when a politician becomes associated with a particular artist or song in the public's mind. As these disputes continue to make headlines and spur public discourse, the simplest solution may simply be to secure both the intellectual property rights and the artist's blessing before a campaign makes use of a song.
1 See, e.g., Tamy Cozier, Campaign Trail Mix: A Brief History of Presidential Theme Songs, PBS.org (Mar. 7, 2012), available at http://www.pbs.org/wnet/need
-to-know/the-daily-need/campaign-trail-mix-a-brief-history-of-presidential-theme-songs/13257; James C. Mc Kinley Jr., G.O.P. Candidates Are Told, Don't Use the Verses, It's Not Your Song, N.Y. Times (Feb. 3, 2012), available at http://www.nytimes.com/2012
2 Letter from Tamara Milagros-Butler, of Myman Greenspan Fineman Fox Rosenberg & Light LLP, Counsel for Silversun Pickups, to Mitt Romney (Aug. 15, 2012), available at http://www.tmz.com/2012/08
3 Eriq Gardner, Lawyer Letter to Mitt Romney over Inappropriate Song Use May Have Been Plagiarized, The Hollywood Reporter (Aug. 16, 2012), available at http://www.hollywoodreporter.com/thr-esq
4 See Henley v. DeVore, 733 F. Supp. 2d 1144 (2010).
5 See Browne v. McCain, No. CV 08-05334-RGK (C.D. Cal. Jan. 20, 2009).
6 Whitney Pastorek, Exclusive: Heart's Nancy Wilson Responds to McCain Campaign's Use of 'Barracuda" at Republican Convention, Entertainment Weekly (Sept. 5, 2008), available at http://insidetv.ew.com
8 Browne v. McCain, No. CV 08-05334-RGK (C.D. Cal. Jan. 20, 2009).
9 Eliot Van Buskirk, John McCain to Jackson Browne: You're Welcome, Wired (Nov. 20, 2008), available
10 See Browne v. McCain, 612 F. Supp. 2d 1125 (2009).
12 Eriq Gardner, John McCain Settles Jackson Browne Lawsuit, Apologizes for Use of Song, The Hollywood Reporter (July 21, 2009), available at http://www
13 Keep Thompson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D. N.H. 1978).
14 Id. at 959.
15 Id. at 960.
16 Id. at 961.
18 Henley v. DeVore, 733 F. Supp. 2d 1144 (2010).
19 Id. at 1148.
21 Id. at 1149.
23 Id. at 1150.
24 Id. at 1151.
27 Id. at 1156-57.
28 Id. at 1160.
31 Id. at 1161.
32 Id. at 1163.
33 See, e.g., Pamela Samuelson, Unbundling Fair Use, 77 Fordham L. Rev. 2537 (2009); Alan Latman, Fair Use of Copyrighted Works, Copyright Office Study No. 15, Copyright Law Revision, Studies Prepared for the Subcomm. on Patents, Trademarks and Copyrights, Senate Judiciary Comm., 86th Cong., 2d Sess. 3, 8-14 (1958) (Comm. Print 1960).
34 See 15 U.S.C. §1125(a).
35 See Browne v. McCain, No. CV 08-05334-RGK (C.D. Cal. Jan. 20, 2009).
36 See Browne v. McCain, 611 F. Supp. 2d 1073, 1079 (2009).
38 Id. at 1080.
39 Id. (quoting E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F. 3d 1095 (2008) (quoting Mattel, Inc. v. MCA Records, Inc., 296 F. 3d 894, 902 (2002) (quoting Rogers v. Grimaldi, 875 F. 2d 994, 999 (2d Cir. 1989))).
40 Civ. Code §3344.
41 See, e.g., Midler v. Ford, 849 F. 2d 460 (1988).
42 See Browne v. McCain, No. CV 08-05334-RGK (C.D. Cal. Jan. 20, 2009).
43 Browne v. McCain, 611 F. Supp. 2d 1062 (2009).
44 Id. at 1067.
45 Id. at 1068.
47 Id. at 1069-70.
48 Id. at 1070.
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