The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Bahamian beauty queen's copyright violation lawsuit has survived, after a US federal court was "unpersuaded" by the Ministry of Tourism's effort to dismiss it.

Khiara Sherman, the former Miss Bahamas Universe, and her record company won a partial victory before the southern Texas court after it ruled that the complaint alleging unauthorised use of her song, Fly Away With Me, should be determined at trial.

However, Judge Nancy Atlas found that the second strand of Ms Sherman's lawsuit, involving the purported breach of her $130,000 employment contract by the Ministry of Tourism, should be dismissed because the former beauty queen-turned-songstress had failed to provide "sufficient facts" to support her claim.

The April 19, 2018, ruling thus effectively represents a 'score draw' for the two sides with neither able to claim total victory. Ms Sherman's case lives to fight on, although only the alleged copyright breach remains.

Summing up the complaint, Judge Atlas's ruling said: "Since July 2014, Plaintiffs [Ms Sherman and AK Fortyseven Records] have owned a copyright in the musical work entitled Fly Away with Me.

Sometime in late 2016, defendant [Ministry of Tourism] used the song in connection with a multimedia advertising campaign. According to plaintiffs, defendant did not have their permission to use the song in its campaign."

The judge noted that to succeed on their claim under US federal law, Ms Sherman and her record company needed to prove they owned a valid copyright to the song and that the Ministry of Tourism had copied it.

"Defendant does not dispute that plaintiffs have alleged sufficiently that they are the owners of a valid copyright on the song," Judge Atlas found. "Rather, defendant argues that plaintiffs' copyright infringement claim should be dismissed because the complaint fails to identify, and give defendant fair notice of, the specific acts of its alleged infringement.

"The court is unpersuaded by this argument. Plaintiffs allege in the complaint that, in late 2016, defendant reproduced and distributed a verbatim copy of the song in an advertising campaign without plaintiffs' permission. The advertising campaign included at least one television commercial and postings on the website YouTube.

"Plaintiffs also allege that defendant observed a performance of the song in Houston, Texas, and that there was a business relationship between defendant and plaintiff Sherman," the ruling continued.

"In this case, the well-pleaded factual allegations in the complaint support a plausible inference that defendant had access to - and copied - the song, plaintiffs' copyrighted material, without the requisite consent.

"The allegations also provide defendant with notice of what copyright it infringed, how it allegedly infringed that copyright (without permission in a television commercial and in postings on YouTube), and when the alleged infringement occurred."

As a result, Judge Atlas ruled that the Ministry of Tourism had received "fair notice of the copyright infringement claim", while Ms Sherman and her record company had submitted "a plausible claim for relief".

"Factual disputes as to which of defendant's late 2016 advertisements, if any, made use of the song without permission are best suited for resolution through discovery and summary judgment, not a motion to dismiss," the judge concluded.

The Ministry of Tourism, though, fared better in its efforts to dismiss the former beauty queen's 'breach of contract' claim on the basis that she had not provided adequate facts to underwriter her case.

"Defendant contends that the complaint lacks sufficient factual allegations with respect to the formation of a valid contract between it and Sherman, or Sherman's performance thereunder, to state a plausible claim for relief," Judge Atlas found.

"The court concludes that defendant's assertion regarding Sherman's performance under the service agreement is persuasive. The complaint alleges that defendant and Sherman reached an agreement whereby defendant would pay her to perform 'work'. There are no factual allegations in the complaint identifying or describing the 'work' Sherman was to perform pursuant to the service agreement.

"Sherman's only allegation addressing the second required element of her breach of contract claim, her performance or tendered performance under the service agreement, is that she 'attempted to perform the work under the contract but the Ministry of Tourism refused to accept'," the ruling continued.

"Absent any factual allegations describing the nature of Sherman's obligations under the service agreement or what she 'attempted to perform' thereunder, this allegation amounts to little more than a formalistic recitation of an element of Sherman's breach of contract claim.

"Such a formalistic recitation 'will not do' in terms of satisfying Sherman's obligation to plead sufficient facts to state a facially plausible claim for relief."