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Copyright Suit Alleges Huckabee Campaign Lacks "Eye of the Tiger"

Mike Huckabee's poor performance in the Iowa caucuses – leading to his subsequent withdrawal from the race – isn't his only concern lately. Huckabee's presidential campaign organization faces a lawsuit for playing Survivor's "Eye of the Tiger" without permission during a rally for Kentucky County Clerk Kim Davis, who was released from jail for contempt of court stemming from her refusal to issue marriage certificates to same-sex couples in the wake of the Supreme Court's landmark ruling. (See Rude Music, Inc. v. Huckabee for President, Inc., No. 15-10396 (N.D. Ill. filed Nov. 18, 2015)). The plaintiff, Rude Music, Inc., owned by Survivor's guitarist Frank M. Sullivan III, and the publisher of the musical composition, filed a copyright infringement action against Huckabee for President, Inc. in November of 2015. According to the complaint, as Huckabee led Davis from the detention center, a clip from Survivor's Grammy-winning song "Eye of the Tiger" was used for dramatic effect. Rude Music alleged that this public performance infringed its copyright, and is seeking an injunction barring future unauthorized performances and monetary damages.

Made famous in Rocky III and regularly blasted from stadium speakers to stoke up the home team and the crowd, "Eye of the Tiger" was a number one hit on the Billboard Hot 100 Chart for six weeks in 1982 and features a catchy melody with lyrics that inspire listeners to prepare for life's battles. In the movie, the song plays over dramatic scenes of Rocky battling opponents in the boxing ring before his triumphant match against Clubber Lang. Not to be outdone, Huckabee's rally for Mrs. Davis attempted to use these same themes to paint a virtuous battle between a defiant state court clerk versus the federal government.

Like trash talk at a pre-fight weigh-in, Sullivan was quick to respond to the rally on his Facebook page: "NO! We did not grant Kim Davis any rights to use 'My Tune -- The Eye Of The Tiger. I would not grant her the rights to use Charmin!"…." After the suit was filed, Mike Huckabee responded, calling the lawsuit "very vindictive" and renewed his support for Mrs. Davis's position. Unsurprisingly, Sullivan expressed his opposing view and went on to state that he does not "like mixing rock and roll with politics; they do not go hand in hand."

In his Answer to Rude Music's complaint, Huckabee asserted several affirmative defenses to the infringement claim, including fair use (arguing that his alleged use of a one-minute clip of the song during a noncommercial and religious rally should constitute fair use). Interestingly, Huckabee also counterpuched that the rally for Kim Davis was not a campaign event at all, rather a religious assembly within the meaning of Section 110(3) of the Copyright Act. Certain provisions of the Copyright Act (17 U.S.C. § 110(3)) create an exemption to copyright requirements for the "performance of a nondramatic literary or musical work or of a dramatic-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly."  Huckabee claims that because "Eye of the Tiger" isn't incorporated or performed in musical theater, it is a nondramatic musical work for purposes of the Copyright Act. Therefore, because he considers the Davis rally to be a "religious assembly," the alleged improper use of the song does not constitute infringement under the Copyright Act.

Apparently "Eye of the Tiger" is a popular tune along the campaign trail, as this isn't the first time that Rude Music filed a lawsuit against a presidential candidate for using its song at a rally. Newt Gingrich was sued by Rude Music in 2012 after Rude Music claimed that Gingrich played "Eye of the Tiger" at events going back as far as 2009. In any case, Huckabee will still need to start "risin' up to the challenge of [his] rival," only now his opponent is an 80s rock star instead of other Republican hopefuls, since, as the Iowa Caucus results proved, Huckabee wasn't a Survivor after all. 

© 2020 Proskauer Rose LLP. National Law Review, Volume VI, Number 60

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