The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Ministry of Tourism’s Lenny Kravitz-led marketing campaign has escaped “irreparable harm” after a US court barred disclosure of its commercial terms to a former Bahamian beauty queen.

The southern Texas federal court, in a March 27 ruling, declared the Ministry’s deal with the Grammy award-winning rock icon off-limits to Khiara Sherman and her attorneys on the grounds that it is “not a relevant benchmark” for determining any copyright damages she may have suffered.

The former Miss Bahamas Universe winner-turned-songstress sparked alarm at the Ministry of Tourism when she demanded that the court order it to produce the January 2019 licensing agreement with Mr Kravitz for the use of his song, Fly Away, in its multi-million dollar worldwide advertising campaign.

But, to the ministry’s evident relief, senior district judge Nancy Atlas sided with its argument that the deal with Mr Kravitz was “irrelevant” and had “no bearing” on what the court may award Ms Sherman if she proves her case.

Detailing the Ministry’s arguments in her 14-page ruling, judge Atlas said: “The Ministry emphasises that Lenny Kravitz is a renowned, well-established musician, and is entirely dissimilarly situated to Khiara Sherman, a relative newcomer to the music industry with a far more limited following and number of works.

“The Ministry also contends its licensed use of Kravitz’s Fly Away in a 2019 multi-media advertising campaign to promote The Bahamas is not comparable to its use of Khiara Sherman’s work in (allegedly) 2016 and 2017.

“Finally, the Ministry contends the production of the Kravitz license, even if done under highly confidential limitations, would harm its campaign to promote The Bahamas. The Ministry asserts that its relationship with Lenny Kravitz is highly sensitive and confidential, and that if it is forced to disclose the Kravitz license to ‘anyone in the context of this litigation’ it will ‘irreparably damage the ‘Fly Away’ campaign’.”

The Ministry, in its filings, also accused Ms Sherman of trying to “pressure it into settling this case” by providing court filings to the Bahamian media, meaning Tribune Business, although this newspaper can assure it that such assertions are incorrect.

Ms Sherman, who alleges that the Ministry of Tourism violated her copyright by using her song, Fly Away With Me, in previous advertisements and promotions marketing The Bahamas, argued that the Kravitz licensing deal was necessary to help determine any damages she is due.

Judge Atlas, though, found that the Ministry of Tourism had “met its burden” to show the Kravitz deal was “not a viable benchmark”. She ruled that the world-renowned artist and Ms Sherman were worlds apart in terms of their singing careers and success.

“Lenny Kravitz has been nominated for nine Grammy Awards, and he has won four,” the ruling said. “The song Fly Away won a Grammy Award in 1999, and the album on which Fly Away was featured sold over 2 million copies.

“Kravitz’s ten studio albums have sold 40m copies worldwide. Kravitz personally has appeared in major motion pictures, including The Hunger Games, The Hunger Games: Catching Fire, Precious, and The Butler.

“In contrast, Khiara Sherman paid to enter Fly Away with Me into a 2014 song competition hosted by the Ministry. At the time of the alleged infringement in May 2016, Sherman had licensed Fly Away with Me only once in December 2015 for $500.

“She apparently licensed it again in July 2017 for $750 for a worldwide, five-year advertising video campaign, extending to’all forms of media known and unknown to date’, promoting the ‘Bahamas Out Island Promotion Board Music Video’.”

Judge Atlas also noted that Ms Sherman’s complaint related to a period almost two years’ before the deal with Kravitz to create a vast multi-media marketing campaign across the US. In contrast, her complaint relates to a 10-month period in which the Ministry of Tourism said her song was used “in two 15-second ‘intro bumpers’ on a single, limited availability, television cable station”.

“It is clear that the Kravitz license involves a dramatically more well-known and exceptionally highly regarded song and artist, covers a post-infringement time period, and contemplates a substantially more expansive use of the protected work as well as the artist’s persona,” the US court ruled.

“Given these enormous dissimilarities, the court requires some explanation of a ‘process of reasoning’ that could account for these differences and provide a non-speculative measure of plaintiffs’ actual damages. Plaintiffs have not done so, and the Kravitz license is ‘inapposite’. As a matter of law, it cannot constitute a benchmark license.”