The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian beauty queen demanded a $1.1m settlement for the Ministry of Tourism's unauthorised use of her song just weeks after she licensed its five-year use for only $750.

The ministry, in its latest legal salvo against the copyright violation lawsuit launched by Khiara Sherman, said it was bewildered how the former Miss Bahamas Universe's Fly Away With Me song could increase in value by $1m in just three months.

To back its claims it produced a July 5, 2017, agreement signed by Ms Sherman where she gave permission for the song to be used in a Bahamas Out Island Promotion Board video for just $750 compensation over a five-year period.

This contrasts sharply with the $1.1m settlement demanded by the ex-beauty queen-turned-songstress, and her US attorneys, in an October 9, 2017, letter sent to the Ministry of Tourism for its allegedly unauthorised use of Fly Away With Me in marketing/promotional materials.

That letter, filed with the southern Texas federal court, claimed there was "irrefutable evidence" that the Ministry of Tourism had "engaged in flagrant and repeated copyright infringement" of Ms Sherman's rights to Fly Away With Me.

Nick Brown, her attorney, argued that it was "a virtual certainty" Ms Sherman and her record company, AK Forty7 Records, would prevail in any lawsuit filed and be due a royalty fee of at least $1m.

Then, seemingly seeking a quick victory, Mr Brown's letter ended with a settlement offer. "Despite the inexcusable manner in which they have been treated, Ms Sherman is a patriotic Bahamian and would prefer to resolve this dispute without the need to proceed to antagonistic litigation," he wrote.

"I hope the Ministry of Tourism also sees the benefit of doing so, given that litigation carries the danger of a seven-figure damages award, will be distracting for the Ministry of Tourism, and costly to pay for and defend."

Suggesting terms that had a "mutual benefit", Mr Brown offered a settlement that included "settling all past claims of copyright infringement and providing the Ministry of Tourism with a three-year license to use the song, Fly Away With Me, for a lump-sum payment of $1.1m".

Other conditions, this time relating to the alleged employment contract breach, involved an $85,000 one-time payment "and a new contract appointing Ms Sherman a cultural ambassador of The Bahamas for a term of four years with a stipend of $35,000 per year plus per diem and travel expenses".

"This is not only a sizeable discount from the amount my clients will likely be awarded if this case proceeds to litigation but also gives the Ministry of Tourism the ability to spin its actions as a major win to both the Bahamas government and the press," Mr Brown added, offering some helpful PR advice.

The Ministry of Tourism, in August 28 filings defending its counter-claim against Ms Sherman's bid to knock it out, seized on the discrepancy between her financial settlement demands and the $750 licensing deal with the Out Island Promotions Board.

It recalled how, in 2015, "plaintiff [Ms Sherman] contacted the Ministry dozens of times seeking employment. The Ministry declined to employ her because of its concerns about how much time plaintiff would be able to dedicate to work.

"Plaintiff apparently took this refusal to employ her personally. Plaintiff threatened the Ministry with litigation that 'would be expensive to pay for and defend', and then started a media campaign designed to pressure the Ministry into paying her a settlement," the Ministry of Tourism alleged.

The "media campaign" refers to Tribune Business's coverage of the dispute, which was not sparked by any contact with Ms Sherman or her attorney. Still, the government ministry alleged: "Plaintiff's suggestion that press attention to this case weighs in favour of sanctions is directly at odds with the fact that plaintiff is the one generating this attention by reaching out to media in hopes that it will make the Ministry 'come to the table'.

"To bolster her threat, Ms Sherman referenced a properly authorised video that used a few seconds of her song covered by the agreement, Fly Away With Me, and alleged that she had suffered more than $1m in damages as a result.

"This claim is surprising given the undisputed fact that, just a few months earlier, plaintiff had licensed the song for five full years of use for a total of $750.00. Plaintiff has presented no evidence - because none exists - as to how or why her song could allegedly increase in value by $999,250 in just a matter of weeks."

The Ministry of Tourism then lashed out at Ms Sherman's efforts to allegedly portray it as a serial violator of copyright owned by young Bahamian artists. "Plaintiff's characterisation of the Ministry as a marauder that steals from innocent artists is belied by the facts," it alleged.

"Plaintiff provided the BNFC {Bahamas Junkanoo Carnival (BJC) organiser) with unconditional rights to use her music for any purpose whatsoever. The Ministry knew of the BNFC's broad rights in the BJC songs, including Fly Away With Me, and the Ministry acted with authorisation of the BNFC.

"Indeed, the BNFC provided plaintiff's song to the Ministry for the purpose of creating promotional content. Plaintiff signed the Agreement because she wanted this promotion of her song, and she agreed not to sue any entity that provided such promotional activity. Yet, despite this promise, plaintiff has now sued the Ministry."

The Ministry of Tourism said it had "worked tirelessly" to promote Ms Sherman's song, and was merely asserting its "contractual rights" in a counter-claim the former beauty queen had no good cause to dismiss.