The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A FORMER Bahamian beauty queen has accused the Ministry of Tourism of failing to properly investigate her copyright violation claim, as she battles its efforts to dismiss her lawsuit.

The fight over the alleged unauthorised use of Khiara Sherman's song, Fly Away With Me, has intensified over the past fortnight with the ex-Miss Bahamas Universe suggesting that the Ministry was not taking seriously its "obligation to preserve evidence".

But the Ministry of Tourism, in its legal filings, argued that Ms Sherman and her record company, AK Fortyseven Records, had failed to provide sufficient factual evidence to support their claim.

It claimed that their "last ditch" production of a 12-second cell phone video, showing a tourism-related TV advertisement purportedly featuring Mrs Sherman's song, failed to cure this "fatal flaw" because it was produced too late.

The legal arguments and filings are heating up ahead of the southern Texas federal court's decision on whether to grant the Ministry of Tourism's motion to dismiss Mrs Sherman's copyright infringement and breach of contract claims.

She and her record company, in an April 3 filing, argued that the Ministry of Tourism's case for dismissing their action "boils down" to its supposed inability to find the tourism-promoting TV commercial responsible for the purported copyright breach.

"While that may speak volumes about how seriously defendant takes its legal obligation to investigate claims and preserve evidence, it has nothing to do with the merits of plaintiffs' case," attorneys for Mrs Sherman and AK Fortyseven Records argued.

"Plaintiffs' complaint provides detailed allegations about the infringed work, the infringing acts, the contract between the parties, the breach and the damages.... The facts giving rise to this lawsuit could hardly be more straightforward.

"In 2014, plaintiffs published a musical work entitled Fly Away With Me. Defendant knew plaintiffs had authored and performed the song. Nonetheless, in 2016, as part of an advertising campaign, defendant reproduced and distributed a verbatim copy of a portion of Fly Away With Me in a television commercial without seeking or obtaining plaintiffs' permission."

Mrs Sherman, who represented the Bahamas at the global Miss Universe pageant when it was controlled by now-US president, Donald Trump, said the Ministry of Tourism had been provided with a copy of the alleged offending TV commercial on March 28, 2018.

But the Ministry, distinctly unimpressed, said the purported evidence had been produced too late for the Texas court to consider it because it was not attached the initial lawsuit filing.

Arguing that Ms Sherman and her record company had failed to identify the alleged copyright infringement, the Ministry's attorneys said: "After the Ministry incurred the significant cost of filing its Motion to Dismiss, plaintiffs admitted this fatal flaw by voluntarily producing some documents allegedly showing evidence of infringement.

"Plaintiffs' production is too little, too late. Plaintiffs failed to identify even a single, specific act of copyright infringement in their complaint." As a result, the Ministry of Tourism is alleging there are strong grounds for Ms Sherman's action to be thrown out because it fails to meet the 'pleadings' standards required by US federal courts.

Referring to the last-minute production of the 'offending' TV commercial, the Ministry added: "Plaintiffs' newly-issued invitation for the court to consider 'facts' outside the pleadings further underscores the deficiency of plaintiffs' complaint.

"Accordingly, the unauthenticated 12-second cellphone video of a television screen that plaintiffs provided to the Ministry's counsel after the Ministry filed its Motion to Dismiss.... is not a 'fact' that the court can consider. It is undisputed that plaintiffs did not attach the unauthenticated video to the complaint.

"Therefore, the newly-discovered cell phone video on which plaintiffs now seek to rely is irrelevant to deciding the Ministry's Motion. This unauthenticated last-ditch 'evidence' simply cannot cure the deficiencies in plaintiffs' complaint."

The Ministry of Tourism alleged that Ms Sherman had failed to provide specifics showing how she was harmed, and added: "Plaintiffs' accusation that the allegedly infringing work was widely distributed on television and the Internet is belied by the fact that not even plaintiffs are able to locate the work in those media.

"And Plaintiffs assumedly knew what they were looking for and possessed the 'evidence' in advance of filing this lawsuit. The broad statements in the complaint certainly were not sufficient to allow the Ministry to identify the work. And, contrary to plaintiffs' misrepresentations, the Ministry's 'obligation to preserve evidence' is not at issue."

Mrs Sherman and her attorneys not surprisingly disagreed, arguing that they had supplied sufficient factual evidence to satisfy US federal pleading requirements. "Defendant's sole argument is that it cannot locate the infringing works," they said of the Ministry of Tourism. "Considering defendant's obligation to preserve evidence, that is concerning."

Pointing out that the Texas court "will soon be required to judge the credibility of the parties", Mrs Sherman and her record company argued that the Ministry of Tourism's inability to locate the offending TV commercial was the "most notable" aspect of their defence.

Ms Sherman's second allegation, which involves the purported breach of her $130,000 employment contract by the Ministry of Tourism, was meanwhile given similar treatment by the latter who said the claim "falls even shorter" when it comes to providing facts.

This, though, was refuted by the former beauty queen-turned-songstress, who said: "The pleading identifies the specific parties to the contract (Mrs Sherman and the Ministry of Tourism), the timeframe in which the offer was made and accepted (September 2016), the nature of the contract, the nature of Mrs. Sherman's obligations (performing work on behalf of the Ministry), the nature of the Ministry of Tourism's obligations (paying Mrs. Sherman $113,160 plus approximately $15,000 in benefits), the term of the contract (three years), that Mrs Sherman tendered performance (by attempting to perform the work), the specific promise breached by the Ministry (failure to pay the amount due), and the damages suffered as a result (the monies owed on the contract which were not paid)."

But the Ministry, which was given the last word, countered: "Plaintiffs fail to state a claim upon which relief can be granted. Plaintiffs do not include sufficient factual content in their complaint to identify the allegedly [copyright] infringing work. The Ministry is therefore not on fair notice of the claim against it and the grounds upon which such claim rests.

"Plaintiffs' contract claim is likewise deficient. Plaintiffs do not plead facts supporting the elements of breach of contract."