Did “Eye of the Tiger” Receive Black Eye Due to Use by Huckabee?

September 17, 2015

BY SUSAN FONTAINE GODWIN: Politicians and rock stars were exchanging blows again last week, as Kentucky clerk Kim Davis was released Tuesday morning, Sept. 8, after serving six days in prison, to the sounds of Survivor’s classic song “Eye of the Tiger.”

The Survivor band issued a statement on their Facebook page a few days later stating:

“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! C’mom Mike, you are not The Donald but you can do better than that -See Ya really SoooooooonnnnnnN!!!!!!”

The Kentucky clerk was jailed after refusing to issue marriage licenses to same-sex couples. The song played in the background as she walked out of Carter County Detention Center in front of thousands of supporters, including presidential candidate Mike Huckabee.

Then song co-writer Jim Peterik posted on his Twitter account,

“I have not authorized the use of Eye of the Tiger for use by Kim Davis and my publisher will issue a C&D. This does not reflect my views.”

A “C&D” stands for “cease and desist.”

Things continued to heat up as rumors began flying about the Internet that the band was filing a $1.2 lawsuit, supposedly against Mike Huckabee and Kim Davis.

When asked by Frances Rivera if politicians, like Mike Huckabee, have to ask permission tp play a song, Joe Levy, Rolling Stone contributor told MSNBC.com:

They don’t in point of fact. The rules are complicated, sometimes complicated to the performers and authors of the songs themselves, but there is something known as a “blanket license.” If you were at a venue that had a blanket performance license, you would be legally entitled to use those songs, it doesn’t mean it’s a good idea. When an act protests or sends a cease and desist letter, or makes a stink in public, a politician looks bad. It’s bad optics to go on using those songs whether they’re right or wrong. for a politician to go on using that song.

I had some serious doubts when I read that the band was allegedly filing a lawsuit only two days after the song was played outside Carter County Detention Center as Davis was released from jail. My skepticism had its basis in several key points:

  1. Lawsuits are seldom filed within two days of any type of copyright infringement. It takes quite a bit more time to research and build a case for legal action.
  2. The only “use” of the song that I could identify in this particular situation involved a “public performance right,” and the band, or artist(s), would not be the party that would take legal action. Instead, the songwriter and publisher, or owner(s) of the song would be the ones to file a lawsuit. If there was a violation of the rights of the song owner, it would involve not getting a license for the right to publicly perform or play a song.
  3. Who could be sued? Kim Davis simply walking out of a jail, and probably did not “play” the song over the speakers as she emerged from the detention center. More likely, Gov. Huckabee or someone on his team, authorized the playing the band’s recording of the song. The event at the detention center was planned by Huckabee’s people, senior communications adviser Hogan Gridley told CNN.
  4. If they had gotten the proper performance blanket license in place, from the U.S. performance rights organizations, in this case ASCAP and BMI, then they would have proper licensing and there would be no copyright violation. Any party that wants to publicly play or perform a song does not have to get permission from the band that recorded the song or the publisher that owns the song IF they get performance licenses from ASCAP, BMI and SESAC. In most cases, publishers and songwriters have authorized the PROs to issue performance licenses on their behalf and collect royalty fees for performances of their music. CCS has partnered with ASCAP, BMI and SESAC to provide performance blanket licenses for churches and ministries that cover more than 19 million songs for this specific type of use, including songs like “The Eye of the Tiger.”
  5. Playing or performing a song in public is the “performance right” for music, which is only one of six exclusive rights belonging to the copyright owner. If Huckabee or his team had reproduced “The Eye of the Tiger in a video or a sound recording, then they would have had to obtain permission and licensing from the song owner(s) or their agent. Download our FREE Copyrights 101 Fact Sheet for more details about exclusive rights and licensing. I don’t know if anyone, whether Davis or Huckabee, obtained the proper performance blanket license for the one-time playing of the song. If no blanket license was obtained, then there could have been copyright infringement.

Unfortunately, in all of last week’s news articles that I found on the Internet, none of these issues and questions were addressed. There was a dearth of knowledgeable information and research provided on the exclusive rights of the song and sound recording owners, and what licensing would be required to legally play the song. Instead, there was a diatribe of heated and inflammatory sparring that reflected the band’s and songwriter’s (as well as news and blog writers) disdain with the way their song was being attached to a person or position that did not align with their beliefs and ideas. As I have learned the hard way, it’s smart to do proper research before publishing an article.

Timothy Geigner was hoodwinked, along with many others, into believing false reports regarding a $1.2 million lawsuit and wrote a retraction in TechDirt Sept. 11:

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!

Luke Darby wrote in GQ.com on Sept. 14:

The CliffsNotes version is that the musician who performed the song and the production company behind it don’t have final legal rights over who uses a song: The songwriter and his or her performance rights organization {PRO} of choice do.

It is certainly understandable that a musician or songwriter would be unhappy and even irate about someone using their song to support a view they strongly oppose. “Eye of the Tiger” is only the latest pop song to be caught in a political crossfire. And certainly if a politician uses a song and an artist’s recording to brand their campaign, there could be other issues that could warrant legal action.

Over the years, any number of political candidates have referenced fiery rockers and heartland anthems but then been called out by the musicians, whose political beliefs often run counter to the candidates. In 1984, Ronald Reagan evoked Bruce Springsteen’s “Born in the U.S.A.,” only to have Springsteen respond by dedicating the song to workers at a union local. In 2008, Heart took offense at its song “Barracuda” being used at rallies for vice presidential candidate Sarah Palin, whose nickname was “Sarah Barracuda.”

A number of different artists, including John Mellencamp and Neil Young, have gone on the offensive after a politician has used their music as part of their campaign, either in personal appearances, in YouTube videos or on television advertising. In 2010, David Byrne sued former Florida Governor Charlie Crist for allegedly using the ‘Talking Heads’ 1985 single “Road to Nowhere” without permission or proper licenses.

Byrne sought $1 million in damages from Gov. Charlie Crist, who was also Florida’s former Attorney General, and his senatorial campaign for use of the song earlier this year in a website and YouTube ad attacking his then-Republican primary opponent, Marco Rubio. The lawsuit was settled out of court, and Gov. Crist was required to make a public apology to David Byrne on a YouTube.com video. Gov. Crist admitted that the song and the sound recording featuring Bryne’s recording of the song were reproduced in ads and on a YouTube video without permission.

CCS’s Founder and CVO, Susan Fontaine Godwin is an educator and long-time member of the Christian arts community with 30 years of experience in the Christian media industry, church copyright administration and copyright management. Susan is an author and speaker and frequently writes for several Christian magazines and online publications. She serves as an adjunct professor at the University of Mobile.

About Christian Copyright Solutions: CCS’s quest is to help churches and Christian ministries “do music right.” CCS is an expert on church music copyrights and our primary focus is providing licensing and clear educational resources to churches, as well as representation, administration and advocacy for copyright owners. Follow us on Twitter, Facebook and Pinterest. The information contained herein is for informational purposes only, and is not legal advice or a substitute for legal counsel.

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