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Beauty Queen Demanded $1m For Song Worth $750

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.

Comments

bogart 1 year, 1 month ago

A LAWYER WID FIRE....WE NEEDS MORE OF HIM IN DA BAHAMAS TO REPRESENT PORE PEOPLE AGAINST DA BANKS.....,!!!!!

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ThisIsOurs 1 year, 1 month ago

The Ministry of Tourism thought the song was good enough to use in a global marketing campaign. How much did they pay the marketers for the ad? If they had gone about it the right way they could have gotten off with a ~100,000 contract which was her original request. But no, they stole her song, then said they never used it, then they tried to brand her as unreasonable and a problem, then they said she'd signed away her rights to them. The judge should put a judgement on them for 2 million for doing all this to their own citizen.

The Ministry just needs to stop this foolishness. Talking about her signing away her song for 750. How much was Sammy Starr and Lady E's contract at Sony worth? They signed up under the same rules and the quality of what they put out netted them returns thousands of times over. Stop it MOT. This lady has a quality song, pay her. You let your employee get away with giving herself a contract for the Fyre festival and didn't say boo. Pay her for the use of her song in the same spirit that you thought the song was fabulous enough for a global marketing campaign.

DAguilar seems to have a real issue with black people having high salaries or pay days. Look at how he light into Mr Poitier whom the British government sought out to establish an entire creative entertainment program. He really seems to have a problem with black people who dnt know their place.

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hrysippus 1 year, 1 month ago

Thisshouldbemine, puts frequent posts on this site that are simply lies. ", then said they never used it, then they tried to brand her as unreasonable and a problem," When did the ministry say this, please. I did not. just another PLP apologist with the integrity that is expected of that type of person. Sad.

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ThisIsOurs 1 year, 1 month ago

Lol. You got the song wrong, it's "You should be mine, but you're way out of line" Axel Rose, Guns and Roses.

I leave it to you to research the articles. Their first defense was they never used the song. They maintained that until she produced a short clip recorded off a television screen. Then they next talked about how difficult she was to work with. I like reading and I read it, I've followed the story since the first article, I can only assume you didn't and you don't. I could be wrong on the last part. Have to be careful now that I know you're watching me with a dictionary, a tape measure and a magnifying glass.

As to being a PLP apologist, you FNMs are operating like marionettes. Refuse to acknowledge the mess right in front of you and blindly support whatever this govt does. They're mucking "almost" everything up, admit it. No more time is necessary.they need a 360 degree turnaround.you see the foolishness Turnquest spouting now about the worthless budget everyone told him was worthless two months ago? Trying to tell us "gee who could have known"?

No sir/ma'am, I have nothing to do with the PLP, the FNM, DNA, the ABC or the XYZ I've had it with all of them....Until they do better

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mandela 1 year, 1 month ago

Just pay the lady what she is supposed to get, I would bet if she was a foreigner none of this would be going on, I believe Mr. D, D the head of the MOT has a problem with (Black) Bahamians coming into and earning a good payday. I guess if she was of Sarkis's hue it would have been a done deal.

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