Campaign IP Violations Part 3 – Huckabee’s Campaign Pays Up

Dorsey & Whitney LLP

In December, we told you about Mike Huckabee’s campaign getting sued for copyright infringement for using “Eye of the Tiger” without permission at a rally supporting Kim Davis, the Tennessee clerk that refused to issue marriage licenses.

Mr. Huckabee’s campaign settled the lawsuit on confidential terms.  But campaign finance disclosure requirements roared back to bite him twice.

First, financial disclosure requirements undermined his primary defense.  Mr. Huckabee’s campaign had argued in Court that its use of the song was covered by the “fair use” doctrine because it was played at a “religious assembly… signifying joy and praise at the release of Mrs. Davis.”  The songwriter’s lawyers attacked that argument by pointing out that Mr. Huckabee had claimed the rally expenses as a campaign expense.

Mr. Huckabee’s defense may have had legs if he had truly been using the song at a religious assembly and not a campaign rally.  The Copyright Act states that “performance of a nondramatic literary or musical work or of a dramatico-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” is not an infringement of copyright.  17 U.S. C. § 110(3).

Second, Mr. Huckabee’s campaign listed a $25,000 settlement as a campaign expense on federal disclosure statements, making public a settlement that otherwise would have remained confidential.  Now candidates (or their staff) should know exactly how much failing to secure the proper rights may cost them.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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