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.