Amidst many reports of Survivor suing Kim Davis, a county clerk in Kentucky, for unauthorized use of their hit “Eye of the Tiger,” they have yet to file a lawsuit.  However, Survivor could have a valid claim of unauthorized use against Davis.

U.S. District Court Judge David L. Bunning ordered that Davis be jailed for being in contempt of court last week after refusing to comply with an order to issue licenses in Rowan County to same-sex couples due to her Apostolic Christian faith. She also refused to resign from her post. After spending five days in jail, Davis was freed on the condition that she does not interfere with the Rowan County Clerk’s Office issuing new marriage licenses to same-sex couples.

Davis’s release from jail drew a crowd, thanks to Mike Huckabee, former Arkansas governor and presidential hopeful. Huckabee welcomed a newly-released Kim Davis to the stage with Survivor’s 1982 hit “Eye of the Tiger” blaring as Davis closed her eyes and threw her arms up into the air.

Though the crowd cheered as “Eye of the Tiger” was played, not everyone was a fan of the use of the song for the release of Davis.

Survivor guitarist and song coauthor Frankie Sullivan posted to his Facebook page: “NO! We did not grant Kim Davis any rights to use ‘My Tune-The Eye of the Tiger.’”

Jim Peterik, Survivor’s co-founder, added flame to the fire, stating on Twitter: “I have not authorized the use of Eye of the Tiger for use by Kim Davis and my publisher will issue a C&D. This does not reflect my views.”

This is not the first time that artists have accused politicians of crossing the line. In fact, Survivor settled their lawsuit with Republican presidential hopeful Newt Gingrich after they sued him for utilizing “Eye of the Tiger” in an unauthorized manner at his many rallies. Tom Petty has sent a cease-and-desist letter to both then-Governor George W. Bush a cease-and-desist letter for playing the song “I Won’t Back Down” at his campaign rallies and former Representative Michele Bachman for using his song “American Girl” in her presidential campaign.

The use of “Eye of the Tiger” by Kim Davis could be defined as “unauthorized use” for purposes of copyright as she did not obtain the rights to play the song in public. Rightfully, the American Society of Composers, Authors and Publishers says political campaigns need to contact publishers, and for some occasions, an artist’s record label, to secure the right to play a song. Davis and Huckabee should have contacted Survivor prior to utilizing the song. Further, Davis will not be able to utilize the defense of “fair use,” which is defined in Section 107 of the Copyright Act as reproduction “for purposes such as criticism, comment, news reporting, scholarship, or research.” Should Davis and Huckabee continue to use the song in an unauthorized manner, Survivor has a valid copyright claim against them.

Davis filed an appeal last Friday that asks for another delay in issuing the licenses. Hopefully her appeal is not set to the tune of any copyrighted works.

Danielle Drago

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