By NEIL HARTNELL
Tribune Business Editor
The Ministry of Tourism is claiming it could not have breached a former Bahamian beauty queen's copyright because of her deal with the Junkanoo Carnival organisers.
The government agency, in a furious counter-attack against Khiara Sherman, pictured, the former Miss Bahamas Universe, knits 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 her Fly Away With Me track.
The Ministry, in its July 17, 2018, counter-claim, said it was one of the Bahamas National Festival Commission's (BNFC) sponsors that Mrs Sherman agreed to "indemnify, release and hold harmless" 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 Ministry of Tourism's use of Fly Away With Me without her purported permission violates The Bahamas song competition's rules.
Calling on the south Texas court to award damages against the ex-Miss Bahamas Universe, the Ministry also accused Mrs Sherman of "falsely" claiming that she had an employment contract with it.
It alleged that she was "unable to accept" its rejection of her employment application, once the Ministry discovered her singing and other "outside commitments" might interfere with her work.
Unveiling its legal counter-attack to claims it used Mrs Sherman's song without permission in TV promotions of the Bahamas, the Ministry of Tourism alleged: "Mrs Sherman had previously submitted the song in question, Fly Away With Me, to the 2015 Bahamas Song Competition.
"By submitting her song, Fly Away with Me, to the competition, Mrs Sherman agreed to the terms set forth in the competition's Rules and Regulations. Among other terms, Mrs Sherman granted the Bahamas National Festival Commission (BNFC) the 'unconditional right to use the song in any manner whatsoever'.
"Mrs Sherman further agreed in the Competition Agreement to 'release, indemnify, and hold the BNFC, its sponsors, and judges harmless for liability, damages, or claims for injury or loss to any person or property, relating to, in whole or in part, directly or indirectly, participation in promotional activity'."
The Ministry of Tourism is thus arguing that its status as a Commission sponsor, combined with the agreement signed by Mrs Sherman, prevent her from suing for copyright infringement relating to Fly Away With Me.
"The Ministry of Tourism was a sponsor of the Competition. Therefore, Mrs Sherman agreed in the Competition Agreement to release, indemnify and hold the Ministry harmless for any claims that at least in part indirectly related to participation in promotional activity," the Ministry of Tourism's legal filings allege.
"Mrs Sherman also agreed in the Competition Agreement that '[a]ll submissions automatically become the property of the BNFC and may be reproduced, in whole or in part, at the discretion of the BNFC without any compensation or reimbursement to [the entrant] of any kind under any circumstances'."
The Ministry of Tourism's counter-claim is the latest legal hurdle facing Mrs Sherman in the ongoing battle over her song, for the Ministry is now arguing that her copyright infringement lawsuit breaches the agreement signed with the Bahamas National Festival Commission.
"Any alleged use of Mrs Sherman's song was within the scope of authority Mrs Sherman directly granted to the Ministry as a sponsor, or was within the scope of the BNFC's authority under which the Ministry was acting," Tourism alleged.
"The BNFC performed its obligations under the Competition Agreement by entering Mrs Sherman's song in the competition. Mrs Sherman's filing of this lawsuit breaches multiple provisions of the Competition Agreement, including at least those provisions quoted above. The Ministry has been damaged by Mrs Sherman's breaches."
The Ministry of Tourism argued that the Competition Agreement was a "valid contract" that is "binding" on Mrs Sherman, and that it has the right to enforce it. Seeking to turn the tables, it is urging the south Texas court to find that it was the ex-beauty queen - not the Ministry of Tourism - that committed the breach, and demands damages including costs.
The latest legal manoevere comes after Mrs Sherman won a victory that saw the south Texas federal court reinstate her "breach of contract" claim over the employment deal, leaving the Ministry of Tourism in a worse place than when it first attempted to dismiss her lawsuit.
Previous legal filings, though, gave an indication of the Ministry of Tourism's revised strategy. It claimed that "a valid license" allowed it to use the Fly Away With Me song in "two intro bumpers" to promote a Bahamian music festival, namely Bahamas Junkanoo Carnival.
"Defendant states that the creation of two intro bumpers to promote a Bahamas music festival was authorised by a valid license," the Ministry of Tourism alleged.