The Tribune

A former Miss Bahamas Universe winner-turned-songstress is suing the Ministry of Tourism for allegedly breaching a $130,000 employment contract and violating her copyright.

Khiara Sherman, who once represented the Bahamas at the global pageant then-controlled by US president, Donald Trump, is claiming the Ministry failed to obtain permission to use her song, Fly Away With Me, in its multi-million dollar marketing campaigns.

Legal documents obtained by Tribune Business also reveal Mrs Sherman’s claims that the Ministry breached “a binding” three-year employment contract with her worth almost $130,000, refusing to accept her work and “failing to make any” of the due payments. Mrs Sherman, who held the Miss Bahamas Universe title in 2009-2010, was joined as a plaintiff in the action by her US-based record company, AK Fortyseven Records.

The Fly Away With Me song was featured at Bahamas Junkanoo Carnival in 2015, when it was selected as one of the competition’s semi-final entries.

Dionisio D’Aguilar, minister of tourism, initially told Tribune Business he was unaware of the lawsuit when contacted yesterday. Speaking later from Miami, he said the Ministry would respond today once he and senior officials had reviewed the file relating to Mrs Sherman’s complaint.

“We’re going to respond tomorrow [today] once we’ve analysed the file,” he said, after consulting Ministry officials. “We are reviewing the case, and will have a response tomorrow.”

The lawsuit, which was filed on Tuesday in the Houston area federal court, where Mrs Sherman lives, alleges that the Ministry of Tourism both violated her copyright and breached an employment contract.

“On July 21, 2014, plaintiffs published a musical work entitled Fly Away With Me,” Mrs Sherman and AK Fortyseven Records alleged. “Plaintiffs’ owned a copyright in the work, and all derivative works, from that moment forward. Plaintiffs continue to own the copyright today.

“Sometime in late 2016 the Ministry of Tourism reproduced and distributed a verbatim copy of Fly Away With Me in conjunction with a co-ordinated advertising and media campaign, including a high-dollar television commercial and postings on YouTube.

“The Ministry of Tourism did not ask or receive permission to use, reproduce, distribute or perform the song. The Ministry of Tourism violated plaintiffs’ exclusive rights in Fly Away With Me, including the rights of reproduction, distribution, performance and creation of derivative works.”

Accusing the Ministry of committing a “willful infringement”, Mrs Sherman and her record company claimed: “The Ministry of Tourism had seen Khiara Sherman perform Fly Away With Me on multiple occasions, knew she authored the song, and knew plaintiffs owned the copyright in the song. The Ministry of Tourism nonetheless infringed without permission or authority.”

Mrs Sherman and the record company are thus claiming damages, including royalty fees and “lost profits”, and “the maximum permissible statutory damages under the [US] Copyright Act”. They are also seeking a “preliminary and permanent injunction” to prevent the Ministry of Tourism using Fly Away With Me without permission, which could disrupt its marketing campaigns.

And the former Miss Bahamas Universe winner is also alleging that the Ministry of Tourism breached an employment contract that was agreed when the former Christie administration was in office.

“In September 2016, the Ministry of Tourism extended Mrs Sherman an offer to enter into a business relationship,” the lawsuit claimed. “In exchange for work performed by Mrs Sherman, the Ministry of Tourism’s offer stated it would last three years, pay $113,160 directly to Mrs Sherman, and result in other benefits worth at least $15,000.

“Mrs Sherman accepted the Ministry of Tourism’s offer, and a binding contract was formed between the parties. Mrs Sherman attempted to perform the work under the contract but the Ministry of Tourism refused to accept. The Ministry of Tourism breached the contract by failing to make any of the promised payments.”

She is now demanding “the monies owed on the contract which were not paid”, plus “all actual damages she suffered as a consequence of the Ministry of Tourism’s breach”.

Mrs Sherman and her record company are arguing that the Houston federal court has jurisdiction over the Ministry of Tourism because it has a marketing/promotional office located in the city.

“The Ministry of Tourism’s infringement and breach occurred in commercial advertisements encouraging tourists to visit the Bahamas,” the lawsuit alleged.

“The Ministry of Tourism has a physical office in Houston, Texas, where it employs persons, transacts business and engages in extensive promotional activity.

“The Ministry of Tourism observed plaintiffs performing the infringing work in Houston. The Ministry of Tourism has permanent, continuous and systematic contacts in the southern district of Texas, entered into contracts with Khiara Sherman from its Houston office, engaged in willful copyright infringement in this district, and resides in this district.”

Mrs Sherman, in a 2014 interview with The Tribune, said Fly Away With Me was a reflection of everything she loved and misses about the Bahamas.

“I’ve been living in the United States for nearly five years, and I miss a lot of things about home. I miss my family, friends, certain places I would hangout, and definitely the food. My perspective is one of appreciation and pride, and there is also a strong element of our culture throughout the song,” she said.

She added that Fly Away With Me features a blend of Junkanoo, rake n’ scrape and soca, and can be appreciated by Bahamians living in the Bahamas and abroad because it touches on the country’s culture.