Tuesday, November 6, 2018
By NEIL HARTNELL
Tribune Business Editor
An ex-beauty queen has accused the Ministry of Tourism of "flagrantly abusing" Bahamian singers with a "take what we want, don't pay and deny" approach to paying for use of their songs.
Khiara Sherman, the former Miss Bahamas Universe-turned-songstress, is alleging that her ongoing copyright violation claim has exposed "a pattern and practice" where the Ministry of Tourism has failed to pay multiple local artists for use of their intellectual property.
Other impacted Bahamian singers, according to documents filed in the federal south Texas court, include Angelique Sabrina, who performs the National Anthem on NB12 at midnight every night, and Sketch Carey.
Ms Sherman and her record company, AK Fortyseven Records, claim that the legal discovery process over their claim resulted in the Ministry of Tourism admitting it had no licensing deal or other agreement in place allowing it to use these artists' songs in its promotional campaigns that market The Bahamas to the world.
"Discovery in this case has revealed the Ministry's acts of infringement were part of a pattern and practice of flagrantly abusing the intellectual property of Bahamian artists like Ms Sherman," the former beauty queen and her attorneys allege.
"The Ministry has featured songs of multiple other local artists in its advertising campaigns. For instance, the advertisements produced in this case feature not only Fly Away With Me by Khiara Sherman, but also music by Sketch Carey and Angelique Sabrina, other prominent Bahamian artists.
"In its discovery responses, the Ministry has admitted that it has no licensing agreements authorising the use of these or any other works in its advertising campaigns. Further, the Ministry has expressly denied entering into a single license for any musical work for any television or radio advertisement in the United States in the last five years with anyone, despite the fact that it has engaged in extensive advertising which features music and sound recordings of several different artists," Ms Sherman's revised October 31, 2018, lawsuit continues.
"The Ministry's specific denial of having entered into any such license is reflective of an entity that has engaged in willful, flagrant, and repeated infringement of intellectual property rights. When this issue was first raised, the Ministry accused Ms Sherman of fabricating the existence of the infringing works and threatened to file sanctions against her and her counsel upon the filing of this suit.
"The Ministry's philosophy with regard to the intellectual property of singers, songwriters, musicians and composers can best be summed up as 'we'll take what we want, we won't pay for it, and then deny it ever happened'."
Ms Sherman's latest legal arguments add another twist to a protracted, increasingly bitter legal battle with the Ministry of Tourism which now threatens to drag other Bahamian artists into the fray.
She and her attorneys are also seeking to broaden the breach of her copyright - and hoped-for-damages - beyond the US and into the Caribbean due to the alleged unauthorised use of her Fly Away With Me song in regional promotions.
"After much wrangling, the Ministry was forced to reveal that it had aired the infringing advertisements not just in the United States, but also in nations across the Caribbean," Ms Sherman alleged in legal filings.
"Plaintiffs sent a subpoena to Tempo Networks, a New Jersey-based company, which Tempo Networks ignored. As a result, plaintiffs scoured publicly available information to ascertain the scope of Tempo Network's distribution and viewership.
"Finally, plaintiffs located a document published by Tempo Networks breaking down every channel and country where Tempo Networks aired its programming. In the pertinent portion, Tempo Networks' documents show viewership in every major Caribbean market, including, as relevant here: Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Trinidad and Tobago and, of course, the Bahamas."
As a result, Ms Sherman's latest lawsuit now makes extra claims for copyright breaches in all these countries And the beauty queen-turned-songstress maintains that the "full extent" of the Ministry of Tourism's alleged unauthorised use of her song, Fly Away With Me, in its promotional materials "remains under investigation" by her attorneys.
"The Ministry of Tourism infringed Fly Away With Me in conjunction with a co-ordinated advertising and media campaign, including at least two television commercials which aired to millions of people in New York, New Jersey and Connecticut, and other major markets across the US in 2016," Ms Sherman alleges.
"To date, the Ministry has feigned ignorance regarding the dates the infringing television commercials were broadcast. According to the Ministry, the infringing commercials aired on Tempo Networks in 'late 2016' and, despite multiple discovery requests, the Ministry claims to have no further details. For instance, in response to a request for a 'specific date range' during which the advertisements aired, the Ministry's counsel stated that 'the Ministry does not have the information' requested.
"However, in addition to the infringing commercials that aired on Tempo Networks in 2016, discovery has revealed that, on or before June 20, 2016, the Ministry also created a six-minute video that repeatedly and prominently featured Fly Away With Me. The Ministry also had definite plans to use commercials featuring Fly Away With Me in Florida on or after August 24, 2017. As such, it appears that the Ministry's infringing activities spanned at least 14 months."
Ms Sherman, who claims more than 80,000 Twitter followers, added that the Ministry of Tourism had seen her perform Fly Away With Me on numerous occasions, knew she owned the copyright to it, yet had no agreement permitting its use in visitor promotions.
"In fact, the Ministry specifically investigated whether it had permission to feature Fly Away With Me in advertisements and was explicitly told that it did not. The Ministry internally acknowledged its lack of a license to use Fly Away With Me," she claimed.
The Ministry of Tourism has already suffered two legal reversals in the Texas courts, including the dismissal of its "counterclaim" against Ms Sherman, with all efforts to knock-out her copyright violation lawsuit proving unsuccessful to-date.
Its latest defence cites 19 grounds on which the former beauty queen's claim should be rejected, including its "failure to state a claim on which relief can be granted" and multiple legal technicalities. The Ministry of Tourism also argues that its "conduct was in good faith with non-willful intent".
It has previously argued that Ms Sherman's deal with the Bahamas Junkanoo Carnival organisers protected it from her copyright violation lawsuit, as his purportedly released the Bahamas National Festival Commission and its sponsors - which included the Ministry of Tourism - from any copyright infringement liability over the use of her Fly Away With Me track.
This argument, though, was rejected by the Texas courts.