Mike Huckabee’s presidential campaign has rather unique defenses to a lawsuit alleging infringement of Survivor’s “Eye of the Tiger” at a rally last September for Kim Davis, the Kentucky clerk who was briefly jailed for refusing to issue marriage licenses to same-sex couples. In court papers filed this week, Huckabee for President seemingly denies that copyright holders of compositions own public performance rights, and further, states that the plaintiff’s claims fail because the Davis rally was a “religious assembly.”
The plaintiff is Rude Music, owned by Frankie Sullivan, co-author of “Eye of the Tiger,” which became famous in Rocky III. In November, Sullivan’s company sued Huckabee over the choice of music at the Sept. 8 event.
Huckabee — a Southern Baptist minister who became the governor of Arkansas before running for president before hosting a Fox News show before running for president again — attended the Davis rally, but his campaign denies having “organized, advertised, or promoted” it.
Regardless of whether or not this is true, the latest court filing doesn’t much challenge Rude Music with a failure to show how Huckabee for President was responsible for the music at the Davis event. Perhaps that will come on a motion to dismiss.
Instead, Huckabee’s response raises some quirky affirmative defenses.
The fact that the presidential long-shot is claiming fair use is not itself surprising, but bear witness to exactly how his campaign is addressing the four factors that determine whether the playing of “Eye of the Tiger” on a loudspeaker is a fair use.
To the purpose and character of the use, which typically measures whether the user has transformed the copyrighted work by adding new expression or meaning, Huckabee says his use “was of a non-commercial and religious nature, signifying joy and praise at the release of Mrs. Davis from confinement.”
To the second factor, Huckabee (a part-time musician) offers up the ASCAP-unfriendly interpretation that “the nature of the copyrighted work as a song subjects it to some of the most severe limits of the rights of the copyright holder available under U. S. Copyright law, including depriving the copyright holder of the right of public performance under 17 U.S.C. § 106(4) and the right to display the copyrighted work publicly under 17 U.S.C. § 106(5).”
To the amount and substantiality of the portion take, Huckabee says what was used of the song was “minimal in relation to the length of the copyrighted work.” (Elsewhere in the court papers, the defendant says “approximately a minute” was used. “Eye of the Tiger” is four minutes, four seconds in its entirety.)
To the last factor, the effect of the use upon the potential market, Huckabee tries the argument that the rally offered some free publicity to the song. This factor usually pertains to whether use usurped marketplace demand for a license, but the court papers say that in this instance, the effect upon the market “was, if anything, positive because its limited public performance has helped to keep the song, now a third of a century old, in the public eye.”
Fair use isn’t the only way that Huckabee is attempting to beat the lawsuit.
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.”
The question becomes whether an event outside a jailhouse to celebrate a clerk who refused to issue marriage licenses on religious grounds amounts to a “religious assembly.” Combined with Huckabee’s apparent attempt to argue some kind of religious joy in using the song, the case has veered into strange uncharted territory — a clash between religious liberty and intellectual property.
Of course, lawsuits over music on the campaign trail usually last not much longer than the campaign itself. Four years ago, as an example, then-candidate Newt Gingrich settled a lawsuit over use of “Eye of the Tiger” upon dropping out. At the moment, Huckabee is well behind other candidates like Donald Trump and Ted Cruz. In other words, the litigation over Huckabee’s supposed use of “Eye of the Tiger” might never result in any ruling. If so, the court brief (read here) may be best read as a campaign document to impress potential voters.