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…