The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian beauty queen-turned-songstress has accused the Ministry of Tourism of using "sharp tactics" to portray her as "money hungry" in the latest salvo of their acrimonious legal battle.

Khiara Sherman, the former Miss Bahamas Universe, and her US attorneys are alleging in legal papers that the Ministry resorted to publishing communications barred from use as evidence in a quest to discredit her reputation amid their ongoing copyright and breach of contract fight.

They described the contents of their settlement offer, disclosed by the Ministry to support its counterclaim against her, as "wholly irrelevant" to Ms Sherman's case that it had used her song, Fly Away With Me, in its tourism marketing campaigns without her permission or paying due compensation.

And they accused the Tourism ministry of taking an "extraordinarily obstructionist approach to discovery" in the case, claiming it was trying to wear the ex-beauty queen down and "prevail by a war of attrition".

Arguing that the Ministry of Tourism counterclaim was an attempt to "intimidate" the former beauty queen, and deter her from pursuing legal action, Ms Sherman and her attorneys alleged: "Apparently, it was not enough to wrongfully accuse Ms Sherman and her counsel of engaging in sanctionable conduct under Federal Rule of Civil Procedure 11 for alleging the infringement of Ms Sherman's musical works in a US advertising campaign, which the Ministry later conceded actually occurred.

"Nor was it sufficient, in the Ministry's view, to threaten Ms Sherman with a personal judgment based on a supposed agreement that the Ministry of Tourism did not sign. The Ministry's response continues these sharp tactics.

"The Ministry attached, filed and quoted for the court (and the press) a Rule 408-protected settlement offer which is wholly irrelevant to any issue raised in Ms Sherman's motion, presumably for the sole reason of hoping to make Ms Sherman look 'money-hungry' in the press."

The object of Ms Sherman's anger was the Ministry of Tourism's disclosure, in legal filings with the southern Texas federal court, of her attorney's October 9, 2017, letter offering to settle her claim without resorting to the courts.

As revealed by Tribune Business, she and her attorneys demanded a $1.1m settlement for the Ministry's unauthorised use of her song just weeks after she licensed its five-year use for only $750.

Seizing on the huge discrepancy in valuations, the Ministry 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 the Ministry 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 the settlement letter. That letter 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.

But Ms Sherman and her attorney, sticking to their position, reiterated their demand earlier this month for the southern Texas court to dismiss the Ministry of Tourism's counter-claim.

"In 2014, Khiara Sherman created a one-of-a-kind work of art - her song, Fly Away with Me," her legal filings alleged. "In its response to Ms Sherman's motion to dismiss, the Ministry of Tourism claims it 'worked tirelessly to promote plaintiff's song'.

"But the Ministry did so without her permission and for its own gain, not hers. Because the Ministry refused to even speak to her about compensation for its use of Fly Away With Me, Ms Sherman was required to seek her remedy in court."

The Ministry of Tourism has previously argued that its role as a sponsor of Bahamas Junkanoo Carnival, and the Bahamas National Festival Commission's (BNFC) rules, allowed it to use Fly Away With Me, but Ms Sherman and her attorneys deny this was unlimited.

"As a purely legal matter, the BNFC could not assign the Ministry whatever copyright rights it purportedly held because Ms Sherman did not grant the BNFC permission to assign any rights to the Ministry," they argued.

"Nor can the Ministry dodge this principle by arguing it was the 'agent' of the BNFC and acting on behalf of the BNFC..... To the contrary, the BNFC rules and regulations specifically state that entrants like Ms Sherman retain the copyright, defeating the notion that Ms Sherman somehow gave the BNFC authority to permit unspecified agents to have copyright rights in Fly Away With Me.

"As such, the BNFC could not legally empower other entities like the Ministry to infringe Ms Sherman's copyright rights..... Even assuming that it could theoretically act as the BNFC's agent to absolve itself of infringement, the Ministry lacks clear and specific evidence that it actually did so with regards to the particular commercials that are the subject of this dispute."