Mike Huckabee Settles For Five Figures With Survivor Over Copyright Infringement

from the just-ask-next-time dept

If you'll recall, back when the American presidential campaign was still in full swing and we weren't all left with only two candidates that basically distill the concept of the lesser of two evils argument for voter participation, Mike Huckabee held a rally for Kim Davis and played Eye of the Tiger by Survivor to introduce her. While there was enough wrong in the entire episode to fill up many, many pages, Techdirt focused first on Frank Sullivan of Survivor's lawsuit against Huckabee for copyright infringement. Most observers initially thought that the suit wouldn't go anywhere, as most of the time these politicians have the proper blanket licensing to play these songs as part of their campaigns. Upon further inspection, however, the Kim Davis rally couldn't really have been considered part of Huckabee's ill-fated campaign, which would render any license his people had obtained useless. This was confirmed when Huckabee bizarrely put forth affirmative fair use defenses, claiming that the use was non-substantial and non-commercial...because the Kim Davis rally was a religious rally.

I said at the time that the tactic was unlikely to work and, additionally, was quite a disgusting attempt, given the piety that Huckabee likes to portray. Debasing religious conviction to get out of copyright infringement is stunningly shrewd, even to a devout secularist such as myself. Especially when Huckabee could have simply found a band willing to give permission for the use, setting up some kind of God v. Copyright showdown seemed slimy.

But that's what the former candidate chose to do, which brings me to this strange string of words I never thought I'd put in this particular order: God lost to copyright.

Failed presidential candidate Mike Huckabee is paying $25,000 for playing "Eye of the Tiger" at a rally last year without the band's permission, CNNMoney has discovered. Huckabee never paid for the rights -- so his campaign got sued for copyright infringement. He recently agreed to a confidential settlement with Rude Music. That company is owned by the Survivor guitarist who cowrote the song, Frankie Sullivan.

The claim that the rally was a religious gathering and not connected to the Huckabee campaign reportedly fell apart because he had listed the rally as a campaign expense on his records. Interestingly, despite Huckabee's claim that it was not a campaign event, that it was so will allow him to use his campaign's warchest to pay off the settlement.

And thus comes to an end a politician's campaign infringing on copyright and trying to invoke religion to get out of it. Thy kingdom come...to a settlement with an 80s band, apparently.

Filed Under: copyright, eye of the tiger, kim davis, licensing, mike huckabee, public performance, survivor

God v. Copyright: Mike Huckabee Invokes Religion In Copyright Suit

from the holy-fair-use,-batman dept

Strap in, folks, because we've got quite a battle brewing. You may recall that Mike Huckabee recently found himself the subject of a copyright dispute with Frank Sullivan, a member of Survivor, over the use of the band's hit song Eye of the Tiger at a rally for the release of Kim Davis. Davis was the county clerk who asserted that her right to express her religion -- in the form of denying same sex couples the right to marry -- overrode the secular law of the land, which is about as bad a misunderstanding of how our secular government works as can be imagined. Sullivan's filing indicated that the rally was conducted by the Huckabee campaign and that the use of the song had been without permission, therefore it was an infringing use. Left out of the filing was any indication of whether the Huckabee campaign had acquired the normal performance licenses.

Based on Huckabee's response, it seems like no license was ever obtained, as Huckabee is instead claiming the use was fair use, and that the use was exempt from copyright law to begin with because the Kim Davis rally was a religious assembly.

The fair use claims are pretty simple, though I'm not sure they're particularly likely to succeed. Huckabee claims the use was non-commercial (relating back to the nature of the rally as a religious gathering), that the amount of the work he used was non-substantial (something like a quarter of the entire recorded song was used), and argues that the effect of it being played was essentially one of free advertising for the band, and so there was no harm done in the marketplace. We've seen those affirmative defenses raised in the past, with varying degrees of success, but this doesn't ring as a case where the copyright holder is reaching as far as in other cases we've covered.

And, ultimately, part of Huckabee's fair use defense - in particular that the use was non-commercial and, as Huckabee goes even further to state, had nothing to do with election campaign -- relies on the notion that the Kim Davis rally was an independent religious gathering, not any kind of campaign stop.

His campaign also invokes a rarely used limitation to a copyright owner's rights — one that exempts "performances of a nondramatic literary or musical work ... in the course of services at a place of worship or other religious assembly."

From the filing itself:

Notwithstanding the provisions of 17 U.S.C. § 106, 17 U.S.C. § 110 (3) provides in part that the performance of a nondramatic literary or musical work in the course of services at a place of worship “or other religious assembly” is not an infringement of copyright. Although not explicitly defined in the Copyright Act of 1976, the term “nondramatic musical works” refers to musical works, such as popular songs, not incorporated and performed in an opera or theater musical. Based on the averments of paragraph 7 of the Complaint, “Eye of the Tiger” is a popular song and a “nondramatic musical work” within the meaning of 17 U.S.C. § 110 (3).

The September 8, 2015, assembly for Mrs. Davis was, in view of all the surrounding circumstances, a “religious assembly” within the meaning of 17 U.S.C. § 110 (3) and the First Amendment to the Constitution of the United States.

Drink it in. The claim is a stunning one, where Huckabee, ostensibly a man who holds faith and religion in high regard, is suddenly willing to degrade the concept of a religious gathering simply to support his use of a popular song at a rally for someone he supports. One wonders exactly how the claim might work, what with the wide swath of gatherers at the rally, located outside the jailhouse for a secular government, on public land, and attended ostensibly by enough people that it strains credulity to even imagine that they might all be from one church or one faith. Nowhere is it asserted that anyone was referring to the Kim Davis rally as a religious gathering before this filing.

But think of the possibilities if the court buys this argument. Suddenly, loosely-defined religious grounds can be asserted as an affirmative defense to copyright infringement. The very idea of public performance licensing largely goes out the window, as one can imagine all kinds of gatherings suddenly proclaiming religiosity. Keep in mind that our government is not permitted to distinguish between the faiths, so any faith would do. Hell, one enterprising Techdirt writer such as myself might take up the mantle of L. Ron Hubbard and simply whip up a religion out of whole cloth, calling it the Fairusenalists, replacing the prayer rug, the eucharist, or the kippah with loudly-blasted recordings of Justin Bieber. Were Huckabee's argument to be accepted, who could stop us?

That said, I doubt it will be accepted, largely because Huckabee's claims that his campaign had nothing to do with the rally are blatant lies, given the attendance by his campaign staffers and the blatant promotion of the rally on the Huckabee campaign site. Still, the thought is tantalizing, to say the least...

Filed Under: copyright, eye of the tiger, fair use, frank sullivan, kim davis, mike huckabee, public performance, religious assembly, survivor

Okay, Now A Survivor Member Really Did Sue Mike Huckabee For Using 'Eye Of The Tiger' At Kim Davis Rally

from the the-prophecy-came-true dept

Hey, remember that time I was thoroughly fooled by two hoax sites into reporting that Survivor band members had filed a copyright suit against Mike Huckabee for using Eye of the Tiger at that gross rally for Kim Davis? And remember my simpering excuse, suggesting that copyright as it stands today makes it difficult to separate the absurd from the fake? Well, suck it, universe, because now that Survivor's Frank Sullivan really has filed a copyright lawsuit against Huckabee for using the song at the rally, I am now claiming that instead of being the victim of a hoax, I'm actually some kind of prophetic modern-day Nostradamus.

Sullivan, one of the founding members of the band Survivor, is co-author of the song "Eye of the Tiger," the theme song for the movie "Rocky III." His company, Rude Music, co-owns the rights to Sullivan's songs, court records show. Rude Music sued Huckabee for President Inc. in Federal Court, claiming the Republican presidential candidate used "Eye of the Tiger" without permission at a campaign stop.

The suit itself goes to great lengths to position Huckabee and his campaign staff as a group that really should know better than to use music during the campaign without permission from the artists. After pointing out that this isn't the first such instance of Huckabee facing backlash over the use of music by artists that don't support him, it points out:

Huckabee for President’s infringement of “Eye of the Tiger” is willful. Mr. Huckabee is sophisticated and knowledgeable concerning the copyright laws, both as a private individual and media-savvy business owner. According to the records of the United States Copyright Office, Mr. Huckabee is the author or co-author of more than a dozen copyrighted works. Mr. Huckabee operated television stations in Arkansas, and for years he has hosted political commentary shows on the radio and on Fox News. Mr. Huckabee is himself a musician whose band, Capitol Offense, has performed at political and other public events; in 2007, Mr. Huckabee received a Music for Life Award from the National Association of Music Merchants. Moreover, Huckabee for President has a legal team.

That last bit is my favorite. What's not mentioned in the filing is any reference to any performance licenses the Huckabee campaign must certainly have purchased for music. That's likely to become the central issue, as all major campaigns purchases these licenses to cover rallies (and many venues separately have their own PRO licenses anyway -- though it's doubtful the jail did here) and typically complaints from artists go nowhere because of them. What may make this suit different is whether or not Huckabee can bill the Kim Davis rally as an official campaign stop, where the license would apply. It seems to strain credulity to suggest that the release of a third person from jail somehow qualifies as any kind of official campaign stop, but then again the suit specifically is targeting Huckabee for President, Inc., rather than Huckabee himself, which might muddy the waters a bit.

Either way, as we've said before, it would be trivially easy for campaigns to just clear musical choices with artists first to avoid these dustups. Even if they're not legally required to do so, it's the easiest solution.

Filed Under: copyright, eye of the tiger, frank sullivan, kim davis, mike huckabee, pro license, survivor

Yes, I Was Deeked By Two Hoax Kim Davis Stories Today

from the i'm-just-so-happy dept

Mea Culpa: As our comments section has helpfully pointed out, I have been pantsed today by two hoax stories on two hoax sites that performed their hoaxing in a barely noticeable fashion. For what it's worth, the band has publicly commented that they did not authorize the use of the song and did so in a manner indicating that they were/are planning some kind of response, but the lawsuit claims from Survivor and EMI are fabrications. As our comments section also helpfully pointed out, the state of copyright is such that it can at times be difficult to spot the satire from true stories. That said, it doesn't excuse this writer getting fooled. We are leaving the full post as originally written below, but striked through, so that everyone can see exactly how thoroughly I was fooled today. I have been internet-ed!

Unless you've been living under an insanely large rock these past few weeks, you probably know all about the saga of Kim Davis. Davis is the Kentucky clerk so wrapped up in Christian theology that she decided to defy the United States Supreme Court's order that same-sex marriages are the law of the land and promptly refused to hand out any marriage licenses to her constituency. This, as you should know, is a wonderfully stupid story that continues to get stupider. Whatever your religion, the United States is a secular nation. A Christian government employee can no more refuse to hand out marriage licenses due to religious views than a Muslim person working for the ATF refuse to inspect a case filled with beautiful whisky, a Jewish person working for the FDA refuse to approve imports of succulent bacon, or an atheist person working for the IRS refuse to grant a religious group tax exempt status. Secular government means religion doesn't factor into the job of government. Period, paragraph, full-stop.

Davis was jailed for contempt after she refused to do her job and denied the rights of citizens in her district, as she well should have been. After her underlings began actually doing their jobs, the judge released her. Then this happened (WARNING: this video is likely to make you vomit).

Yes, with presidential hopeful Mike Huckabee leading the crowd, Kim Davis was released from jail in a manner so grossly contrived as to be accompanied by music. You know, like a wrestler's entrance into the ring. The song, sigh, was Survivor's Eye of the Tiger, best known from Rocky, a movie built on themes of religious expression, government disobedience, and oh my god none of that is true and how is this happening? It's unclear exactly what hand Huckabee had in putting together this soundtrack to celebrate the release of Davis, who is, hilariously, a registered Democrat. But what is clear is that Survivor band members are pissed.

The band Survivor has filed a $1.2 million lawsuit against Kim Davis and Mike Huckabee over the unauthorized use of its hit song “Eye of the Tiger.” Speaking with Billboard, band co-founder Jim Peterik said he was also not pleased with the unauthorized use of the song.

“The song has motivated thousands through the years to reach beyond their limits. Its use for the release of Kim Davis does not support my views or my politics.”

Now, this isn't the first rodeo between Survivor and a presidential hopeful using the song. Last presidential election cycle, then candidate Newt Gingrich used the song at a campaign stop. The difference in that case is that Gingrich had paid his ASCAP license and was perfectly free to use the song. It's unclear just what licensing arrangement Huckabee has, but I doubt that Kim Davis has license to use the song, and I'm equally certain the county jailhouse doesn't pay for ASCAP licenses for public performances. Whatever Huckabee's license is, this certainly wasn't a campaign stop for him, so it seems doubtful it would cover this kind of public performance. Others appear to agree.

NBC News spoke with Harvard Law Professor, Paul Horner, who believes Survivor has a strong case.

“Mike Huckabee and Kim Davis had no permission to use the song, bottom line,” Horner said. “This whole incident is in the national public spot light right now, and Huckabee is running for president; he should have known better.”

Of course, even if it's true that this was an infringing use, copyright law limits damages to either actual damages or statutory damages, which max out at $150,000 per infringement. It's not clear how anyone can get to $1.2 million with that. They're going to have a hell of a time proving $1.2 million in "actual damages" if that's what they're planning.

Adding to the idea that the public performance wasn't properly licensed is that EMI has jumped into this legal dustup as well.

“As far as I have heard, no one secured the rights to that public performance of ‘Eye of the Tiger’ and as a result they violated EMI’s intellectual property rights today,” adds [IP attorney Paul] Steiner. “It is illegal for someone to ignore IP law and would make the offending parties guilty of infringement under Copyright Law (17 U.S.C. § 501(a)).”

Steiner alleges that he has already heard of the record company executives “taking exception” to the use of their intellectual property to “help a criminal grandstand in front of an audience”.

As Steiner later goes on to note, record companies oftentimes look the other way in situations like this, because the playing of music is free publicity. In this case, however, with Huckabee standing next to Kim Davis, with their collective message being so downright toxic and misplaced in the legal context, I can certainly understand why neither EMI nor the band would want to in any way be associated with this fiasco. That isn't to say that I think that a million dollar lawsuit is the best approach here. Certainly some action would need to be taken if the band wants to distance itself from Davis' hate-message.

But we need to always be mindful of the original intent and purpose of copyright law in cases like these. Even for those of us that might detest Davis and her message, or who might equally detest an individual that thinks they can lord over her constituents in a blatantly unconstitutional manner, the notion that copyright might be deployed in a manner that ultimately is a picking and choosing who can use art based on their political messages is somewhat distasteful as well. After all, judging from the band's reaction, I imagine they wouldn't be quite so frothy at the mouth if Davis' political message were one with which the band agreed. That deviates from the purpose of copyright, which was to encourage expression, not insulate a band from political associations.

Filed Under: ascap, copyright, eye of the tiger, kim davis, mike huckabee, performance rights, survivor
Companies: emi

Movie Studio & Copyright Troll Claim 'Mere Possession' Of Popcorn Time Is Illegal And Could Result In A Year In Jail

from the nutty-copyright-trolling-theories dept

Meet Carl Crowell. Willamette Week recently ran a profile on his copyright trolling practice, based out of Oregon. Unlike copyright trolls like Malibu Media and Prenda Law, who focused on porn, Crowell has tried to cultivate a copyright trolling client list straight out of Hollywood -- which is how he ended up as the copyright trolling lawyer working for Voltage Pictures on the Dallas Buyers Club trolling efforts in Oregon. You may remember those, because he was the apparent mastermind behind the attempt to abuse trademark law to go after people in Oregon. As we noted at the time, the trademark claims were ridiculous, and clearly seemed to be an attempt to look for a more friendly state court, rather than having to go into federal court with the copyright claims.

Crowell, it appears, has other bizarre legal theories in his copyright trolling bag of tricks -- and now he's testing them out on Popcorn Time users. As you may have heard, a few weeks ago, the makers of the total flop movie, The Cobbler, with Adam Sandler (9% fresh rating on Rotten Tomatoes -- sample reviews include "grindingly dull" and "ill-conceived curio"), decided to sue a bunch of Popcorn Time users for watching the film. And, you may have heard that a very similar lawsuit was filed this week, targeting Popcorn Time users for watching another flop of a film, Survivor, starring Pierce Brosnan (8% fresh rating on Rotten Tomatoes -- with one review stating "there's a reason you probably never heard of it.").

Crowell is the lawyer behind both lawsuits, and while everyone is pretty much focused on the "ooh, they're suing Popcorn Time users" aspect of it, the lawsuits have some absolutely insanely ridiculous claims, beyond just copyright infringement -- including trying to argue that mere possession of Popcorn Time is a criminal act under an Oregon state law barring the possession of "burglary tools." From the lawsuit:

The mere possession of a software program like Popcorn Time is the type of conduct that the State of Oregon has criminalized in ORS 164.235, which reads in part:

164.235 Possession of a burglary tool or theft device. (1) A person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person:

(a) Intends to use the tool or device to commit or facilitate … a theft by a physical taking; or
(b) Knows that another person intends to use the tool or device to commit or facilitate a … theft by a physical taking.

(2) For purposes of this section, “burglary tool or theft device” means … [any] instrument or other article adapted or designed for committing or facilitating a … theft by a physical taking.
(3) Possession of a burglary tool or theft device is a Class A misdemeanor.

It is acknowledged that the transfer of data, storing of the physical data locally on a hard drive and facilitation and redistribution of the stolen data to others may or may not be a “physical taking” under Oregon law.

Whether or not the mere possession and use of Popcorn Time is a Class A misdemeanor under Oregon Law and punishable by up to one year in jail (ORS 161.615(1)) and a fine of $6,250.00 (ORS 161.635(1)(a)) may be argued.

It's one thing to bury this deep within your legal filing (even though the actual claim for relief is only on copyright infringement). It's another to scream this bit of simply wrong legal theory in a press release. But, that's apparently what Dimiter Nikolov of the studio behind the total flop of a movie, Survivor, is announcing in the press release, reiterating the wacky legal theory Crowell shoved into the end of both of the Popcorn Time lawsuits filed so far:

"The mere possession of a software program like Popcorn Time is akin to the type of conduct that the State of Oregon has criminalized in ORS 164.235, which deems the possession and/or use of a burglary tool or theft device as a Class A misdemeanor," says Dimiter Nikolov, Vice President of Business & Legal Affairs at Nu Image, Inc. "It is our belief that the transfer of data, storing of physical data locally on a hard drive and facilitation and redistribution of stolen data to others should be considered a 'physical taking' under Oregon law and we felt compelled to take this opportunity to fight back and ensure that those who choose to engage in this type of behavior face real repercussions, just as a person would if they shoplifted a DVD or other physical consumer product from a retailer."

In case you're wondering, this "legal theory" is completely bullshit. First of all, copyright infringement is not theft (even if the lawsuits pretend the two are interchangeable). So the Oregon law doesn't even come close to applying. Second, even if, in some twisted way a judge considered copyright infringement to be theft, it still wouldn't matter, because 17 USC 301, which defines copyright preemption, makes it clear that federal copyright law "preempts" any state law attempts to create state level copyright laws.

Given that, and the fact that the actual claims in the lawsuit focus solely on the federal copyright claims, it makes you wonder what game Crowell and Nu Image are playing with this completely laughable legal theory. Do they really think that lying about the law will magically get people to pay for their crappy movies? Maybe, instead of inventing bogus legal theories, they should invest in making better movies.

Filed Under: burglary tools, carl crowell, cobbler, copyright, copyright preemption, copyright trolling, oregon, popcorn time, survivor
Companies: nu image

Like Clockwork: Copyright Holders Mistakenly Freak Out About Presidential Candidates Using Their Music

from the again? dept

This seems to happen every four years like clockwork during Presidential elections. Some musician gets upset about a politician he or she disagrees with, making use of his or her music during campaign rallies. This time around the candidate is Newt Gingrich, and the upset musician is songwriter and member of the band Survivor, Frank Sullivan, who co-wrote the song "Eye of the Tiger" which Gingrich has apparently been using during presidential campaigns:

The complaint states that the violation it alleges is intentional since Gingrich is "sophisticated and knowledgeable" concerning copyright laws.

That strikes me as interesting, because I would have to assume that the campaign has paid for standard ASCAP performance license (either that or the locations they use almost certainly have such a license). And if that's true, then Sullivan has no case. If the venue has a license, they can play whatever they want. Full stop. "Eye of the Tiger" is registered to ASCAP, so that's all that's needed. The campaign doesn't need permission of the copyright holder. The Chicago Sun-Times goes into more detail, where Sullivan insists this isn't political, he just doesn't like the song being used without him getting paid. Perhaps he should check his ASCAP statement. If he's not getting paid, he might want to take it up with them.

That same article also notes that Sullivan co-owns the copyright along with his song writing partner/bandmate, Jim Peterik, who seems to both (sorta, kinda) like Gingrich and not like legal actions:

“My wife is a big fan,” Peterik said. “I’m becoming a fan of Newt Gingrich. He has a mind of his own. He’s not a talking head. Originally, I didn’t like him, but look at the competition. He’s looking better and better.”

Peterik is not a party to the suit that Sullivan filed in U.S. District Court in Chicago. They share the copyright, but tend to stay out of each other’s way when it comes to cracking down on infringers.

”I hate suits,” Peterik said. “I hate being in court. I avoid that meticulously. When I [heard about the lawsuit on the radio Monday} I said I’m not surprised, but I’m surprised.”

I say this every time something like this comes up, but even if politicians can make use of such songs without getting permission from the artists, thanks to ASCAP/BMI/SESAC performance licenses, it still surprises me that the campaigns don't seek out musicians who support them in the first place to get their "okay" just to avoid embarrassing situations like this. Either way, it seems almost certain that this lawsuit is going nowhere fast.

Filed Under: eye of the tiger, frank sullivan, newt gingrich, performance licenses, presidential campaigns, rallies, songs, survivor
Companies: ascap, rude music

Is The Contract Cast Members Sign To Be On Survivor Covered By Copyright? CBS Thinks So...

from the copyright-survivor dept

Eric Goldman points us to the news that CBS sent a DMCA takedown to Scribd after the reality TV site RealityBlurred.com uploaded a copy of the contract castmembers sign before being able to go on the show Survivor, as well as a copy of the "rulebook" they receive. CBS apparently claimed that both of these were covered by copyright. Thankfully, RealityBlurred filed a counternotice, claiming fair use due to its use for reporting and commentary -- leading to a scary two week period where CBS would have to sue if it wanted to keep the document offline. However, the two weeks passed and CBS did not respond to notification from Scribd, meaning that the Survivor Contract and the Survivor Rulebook are back online. And, of course, in true Streisand Effect tradition, this attempt at taking down this info has only served to generate even greater interest in what's in the contract and the rulebook. As an aside, while I can see the copyright claim on the rulebook, I think CBS might have more trouble getting a court to recognize copyright on a contract that contains little creative work.

Filed Under: dmca, survivor
Companies: cbs, scribd