William T. McGrath
Republican presidential hopeful Mike Huckabee struck a sour note when he played “Eye of the Tiger” at a campaign appearance.
A lawsuit filed in federal court in Chicago on Wednesday accuses Huckabee’s campaign committee of copyright infringement for using the “Rocky III” theme song without permission.
The suit maintains the use was not an innocent mistake by someone unfamiliar with intellectual property law.
“Mr. Huckabee is sophisticated and knowledgeable concerning the copyright laws, both as a private individual and media-savvy business owner,” the suit says.
It says the former Arkansas governor is the author or co-author of more than a dozen copyrighted books as well as a musician who has a band called Capitol Offense.
Huckabee used to operate television stations in Arkansas and has hosted shows on the radio and on Fox News for years, the suit notes.
And it says Huckabee’s campaign committee has a legal team.
The suit seeks monetary damages and an injunction barring Huckabee for President Inc. from playing the song without authorization.
The suit’s plaintiff is Rude Music Inc., a Palatine-based company that publishes Frank M. Sullivan III’s compositions.
Sullivan is a founding member of the rock bank Survivor and a co-author of “Eye of the Tiger.”
The 1982 song was a worldwide hit. It won Grammy and People’s Choice awards and was nominated for an Oscar.
Rude Music is represented by Annette M. McGarry and Marianne Craigmile Holzhall, both of McGarry & McGarry LLC. They could not be reached for comment.
Huckabee’s campaign did not have an immediate comment.
Huckabee was a central figure at a Sept. 8 rally in Grayson, Ky., outside the Carter County Detention Center.
The rally originally was planned to protest the incarceration of Kim Davis, the Rowan County clerk found in contempt of court for refusing to issue marriage licenses to same-sex couples.
The event turned into a celebration when participants learned U.S. District Judge David L. Bunning of the Eastern District of Kentucky had ordered Davis released after five days behind bars.
Bunning acted after determining that the clerk’s office was issuing licenses to same-sex couples.
Huckabee walked onstage with Davis at the rally as “Eye of the Tiger” played from loudspeakers.
Sullivan was not happy about that turn of events.
Survivor didn’t give Davis permission to use “Eye of the Tiger,” he wrote on the band’s Facebook page after the rally.
In fact, he wrote in a reference to a brand of toilet paper, “I would not grant her the rights to use Charmin!”
The suit against Huckabee’s campaign committee is not the first one brought over the use of “Eye of the Tiger.”
In January 2012, Rude Music sued Newt Gingrich, then seeking the Republican nomination for president, for playing the song at campaign events. Rude Music Inc. v. Newt 2012, et al., No. 12 C 640.
In September 2012, the parties stipulated to the suit’s dismissal after reaching an out-of-court settlement. Terms of the settlement were not disclosed.
Both the suit against Gingrich and the suit against Huckabee were assigned to U.S. District Judge Matthew F. Kennelly.
Litigation over politicians’ use of copyrighted songs seems to be cyclical, the suit against Huckabee’s campaign committee says.
“Artists’ complaints of candidates’ unauthorized use of their songs have become an election-year staple,” the suit says.
William T. McGrath, a member of Davis, McGrath LLC who handles intellectual property and Internet matters, made the same observation.
“It’s political season and whenever it’s political season, these suits crop up,” he said.
McGrath, who is not involved in the Rude Music case, noted that Club for Growth’s super PAC was hit with a suit Tuesday over its use of the 1975 Paul Anka hit “Times of Your Life.”
In a suit filed in a federal court in California, songwriter Roger Nichols and Three Eagles Music allege the super PAC used the song without permission in a commercial attacking Russ Feingold’s positions.
Feingold, a Democrat who represented Wisconsin in the U.S. Senate from 1993 to 2011, is a 2016 senatorial candidate.
Aerosmith sent Donald Trump, another Republican candidate for president, a cease-and-desist letter after he used the song “Play On” at campaign events, McGrath said.
He said political candidates accused of infringing copyrights often raise a “fair use” defense.
In Huckabee’s case, some factors surrounding his use of “Eye of the Tiger” — including the non-commercial nature of the rally — weigh in favor of the defense, McGrath said.
But “it’s definitely an open issue,” he said, because other factors support a finding that there was no fair use.
Huckabee also might have a defense if he or another party involved in the rally obtained a performance license from the American Society of Composers, Authors and Publishers (ASCAP) or a similar organization, McGrath said.
And he said some candidates accused of infringement argue they engaged in political speech that is protected by the First Amendment.
But he has not seen any rulings one way or the other on this issue, McGrath said, so this is a gray area of the law.
The case is Rude Music Inc. v. Huckabee for President Inc., No. 15 C 10396.