Jan 15, 2016

Huckabee Campaign Claims Religious Use for "Rocky" Song

According to the Hollywood Reporter, presidential candidate Mike Huckabee's lawyers are making a unique argument to defeat a copyright suit over his campaign's use of the song "Eye of the Tiger" at a rally last September: that it was a religious event.

The song was played (video clip; uneven audio) at a Sept. 8 rally celebrating the release from jail of Rowan County, Kentucky clerk Kim Davis, who became (in)famous for refusing to marry same-sex couples in the wake of the U.S. Supreme Court's ruling striking down bans on such marriages. The rally was held outside the jail where Davis was held. In addition to Davis, the rally featured Huckabee; then-gubernatorial candidate Matt Bevin; the mayor of Grayson, Kentucky; Family Research Council president Tony Perkins; National Organization for Marriage president Brian Brown; Liberty Counsel president Mat Staver (who represented Davis); and former HGTV hosts David and Jason Benhaman.

Many of the speakers invoked religious themes and ideas in support of Davis. And many of the participants held signs with religious symbols or messages.

Political campaigns of all stripes frequently run into copyright issues with the music used at their events, although campaigns can avoid this by getting general licenses from the major music licensing organizations. In the absence of such a license, campaigns often argue that their use of the music constitutes "fair use" under the copyright law.

Huckabee's campaign organization makes the fair use argument, and also argues that it was not responsible for the event (even though his campaign website announced that "I'm holding" the event). 

But the campaign is also arguing that the event was a "religious assembly" under a provision of the law that allows for use of copyrighted music in religious services without a license (17 U.S. Code § 110(3)). But this provision exempts only music "of a religious nature" "in the course of services at a place of worship or other religious assembly."

While it is at least arguable whether the Davis event was a religious assembly, "Eye of the Tiger," which was the theme song of the film Rocky III, is not likely to be held to be "of a religious nature." A number of churches discovered the copyright issues involved when they were sued by the NFL for hosting fundraising events featuring the Superbowl. The NFL backed off in the face of Congressional criticism, and has now agreed to guidelines for such events.

Thus the Huckabee campaign is likely to have to rely on its fair use argument -- which also seems weak -- if its going to avoid liability for playing the song at the event. Otherwise, it may be down for the count.


Eric P. Robinson said...

The suit was apparently settled in early May, and the campaign is now seeking authorization to establish a legal defense fund to pay the settlement. This implies that the settlement amount is not insignificant, and is a warning that political campaigns should not be cavalier about using copyrighted music without obtaining a proper license.

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