Thrill of the Fight: Huckabee Defends use of “Eye of the Tiger” at Kim Davis Rally

Rude Music Inc., owned by Frankie Sullivan, is suing yet another politician for copyright infringement. The music company sued Republican presidential candidate Mike Huckabee for copyright infringement after he used the company’s song, “Eye of the Tiger,” at a rally in support of Kim Davis. Ms. Davis, the now infamous Kentucky clerk, was jailed after she refused to issue marriage licenses to gay couples. Mr. Sullivan is a former member of the band, Survivor and co-author of the song, made famous by the movie Rocky III. Back in 2012, Rude Music sued Newt Gingrich for his use of the song during several presidential campaign rallies, but that lawsuit was ultimately settled. This time, Mr. Huckabee is fighting back. According to a recent article in The Hollywood Reporter, Huckabee answered the complaint with a variety of unusual copyright arguments.

Unsurprisingly, the answer to the complaint claims fair use, but with a twist. The first factor of the fair use analysis considers the purpose and nature of the use, focusing on whether the infringing work was transformative or added new expression to the infringed work. Mr. Huckabee claims that his use of the song added new expression because the use was “of a religious nature, signifying joy or praise at the release of the confinement of Ms. Davis.” As for the second factor of the fair use analysis, the nature of the infringed work, Mr. Huckabee asserts that the nature of the song deprives the copyright holder of his public performance rights. This is an unusual argument, given the important role of public performance rights licensing in the music industry.

Perhaps the most interesting aspect of Mr. Huckabee’s defense is his use of 17 U.S.C. 110, which exempts the performance of music works “in the course of services at a place of worship or other religious assembly” from liability. Ultimately, the court will need to decide whether the rally constitutes a place of worship; given the political nature of the rally, Mr. Huckabee’s position does not seem entirely tenable. To decide for yourself, you can read all of Mr. Huckabee’s answer to the complaint here.