The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Bahamian beauty queen has accused the Ministry of Tourism of "abusive tactics" in a bid to scare her and other artists from seeking damages for "stolen works".

Khiara Sherman, pictured, the former Miss Bahamas Universe, is accusing the Ministry of seeking to "intimidate" and "deter the existence of constitutional rights" by launching its counter-claim against her lawsuit for breach of copyright and an employment contract.

Ms Sherman and her attorneys, in August 14, 2018, filings with the South Texas federal court, liken the counter-suit to "wielding a club". They also allege that the Ministry has finally admitted to using her song, Fly Away With Me, in "intro bumpers for multiple television commercials" that targeted the Caribbean and US tourism markets.

They are alleging that it only launched the counter-claim as a means to prevent Ms Sherman and other artists who contested the Bahamas Junkanoo Carnival song competition from "standing up for their rights in court" over unauthorised use of their material.

"Through this counterclaim, the Ministry hopes to wield the threat of a personal judgment against Ms Sherman as a club, presumably hoping that she walks away from her suit and that other artists, who also had their works stolen, will not follow in her footsteps," attorneys for the former Miss Bahamas Universe allege. "Fortunately for Ms Sherman, Texas protects its residents against being bullied for doing nothing more than exercising their constitutional rights."

Ms Sherman and her legal advisers are urging the southern Texas court to dismiss the counter-claim because it "cannot survive even the lowest burden of proof", with the Ministry unable to show she signed a document promising not to sue.

The Ministry, in its action, knitted together the various rules governing the 2015 Bahamas Song Competition to allege that she released it from any copyright infringement liability over the use of the Fly Away With Me track.

It is arguing that as one of the Bahamas National Festival Commission's (BNFC) sponsors, Mrs Sherman agreed to "indemnify, release and hold harmless" the Ministry for any damages relating to her participation in promotional activity involving her song.

As a result, it is claiming her copyright infringement lawsuit over the the use of Fly Away With Me in tourism advertisements without her purported permission violates The Bahamas Song Competition's rules.

Yet Ms Sherman is countering: "Because the Ministry is not a signatory to the BNFC (Bahamas National Festival Commission) rules and regulations, and is not identified as a beneficiary of that document, it cannot assert whatever rights that document confers.

"Even ignoring those threshold issues, under basic contract principles, the BNFC rules and regulations do not grant any of the expansive rights now claimed by the Ministry..... As part of the competition, the BNFC published 'Rules & Regulations' describing the event, the selection process, and the awards.

"The Ministry of Tourism was not a party or signatory to this document, and did not oversee or control the carnival or competition, as the Ministry has admitted to this court."

The former beauty queen then alleged that the Ministry of Tourism had used the work of two other artists from the Bahamas Song Competition, as well as her Fly Away With Me, in its TV promotional campaigns. It ultimately created five commercials using recordings from the contest.

"When faced with video evidence proving Ms Sherman's claims, the Ministry was forced to concede that it had indeed featured Fly Away With Me in multiple television commercials aired in the United States," her legal filings allege.

"In fact, in discovery, the Ministry was forced to reveal that it has taken and used at least two other artists' music for this same advertising campaign, who also competed in the BNFC competition.

"Undeterred, and to drive its point home that none of these artists should stand up for their rights in court, the Ministry then sued Ms Sherman for the mere act of filing this lawsuit."

The Ministry, in its responses to questions from Ms Sherman and her attorneys, said: "[T]he Ministry responds that a portion of the work can be heard in two intro bumpers that aired on Tempo Networks in late 2016 in the Caribbean and tri-state area . . . Five 15-second intro bumpers were created featuring artists, including Khiara Sherman, who had submitted their songs to the Bahamas Junkanoo Carnival music competition . . . These intro bumpers introduced ... a Tempo Networks show called Cross Caribbean Countdown."

Branding the Ministry of Tourism's interpretation of the Bahamas Song Competition's rules as "preposterous", Ms Sherman's legal filings added: "If the Ministry's argument is accepted, an undefined group of 'sponsors', which could ostensibly change at any time and without any notice to the entrants, now have an unlimited right to use any of these Bahamian artists' unique musical works.

"Hundreds of Bahamian artists who signed the seemingly innocuous entry form would have surrendered vastly expansive rights - intellectual property and otherwise - to unknown persons in exchange for nothing from those persons. Nothing in the four corners of the rules and regulations suggest that was the intent of the BNFC or the entrants.

"The need for deterrence is especially great here because discovery has uncovered that the Ministry has used at least four other commercials which incorporate the work of other Bahamian musicians who competed in the festival, who likely gave no permission or received any commission from the Ministry."