United States: Three Point Shot - February 2016

Copyright Suit Alleges Huckabee Campaign Lacks "Eye of the Tiger"

Mike Huckabee's poor performance in the Iowa caucuses – leading to his subsequent withdrawal from the race – isn't his only concern lately. Huckabee's presidential campaign organization faces a lawsuit for playing Survivor's "Eye of the Tiger" without permission during a rally for Kentucky County Clerk Kim Davis, who was released from jail for contempt of court stemming from her refusal to issue marriage certificates to same-sex couples in the wake of the Supreme Court's landmark ruling. (See Rude Music, Inc. v. Huckabee for President, Inc., No. 15-10396 (N.D. Ill. filed Nov. 18, 2015)). The plaintiff, Rude Music, Inc., owned by Survivor's guitarist Frank M. Sullivan III, and the publisher of the musical composition, filed a copyright infringement action against Huckabee for President, Inc. in November of 2015. According to the complaint, as Huckabee led Davis from the detention center, a clip from Survivor's Grammy-winning song "Eye of the Tiger" was used for dramatic effect. Rude Music alleged that this public performance infringed its copyright, and is seeking an injunction barring future unauthorized performances and monetary damages.

Made famous in Rocky III and regularly blasted from stadium speakers to stoke up the home team and the crowd, "Eye of the Tiger" was a number one hit on the Billboard Hot 100 Chart for six weeks in 1982 and features a catchy melody with lyrics that inspire listeners to prepare for life's battles. In the movie, the song plays over dramatic scenes of Rocky battling opponents in the boxing ring before his triumphant match against Clubber Lang. Not to be outdone, Huckabee's rally for Mrs. Davis attempted to use these same themes to paint a virtuous battle between a defiant state court clerk versus the federal government.

Like trash talk at a pre-fight weigh-in, Sullivan was quick to respond to the rally on his Facebook page: "NO! We did not grant Kim Davis any rights to use 'My Tune -- The Eye Of The Tiger. I would not grant her the rights to use Charmin!"...." After the suit was filed, Mike Huckabee responded, calling the lawsuit "very vindictive" and renewed his support for Mrs. Davis's position. Unsurprisingly, Sullivan expressed his opposing view and went on to state that he does not "like mixing rock and roll with politics; they do not go hand in hand."

In his Answer to Rude Music's complaint, Huckabee asserted several affirmative defenses to the infringement claim, including fair use (arguing that his alleged use of a one-minute clip of the song during a noncommercial and religious rally should constitute fair use). Interestingly, Huckabee also counterpuched that the rally for Kim Davis was not a campaign event at all, rather a religious assembly within the meaning of Section 110(3) of the Copyright Act. Certain provisions of the Copyright Act (17 U.S.C. § 110(3)) create an exemption to copyright requirements for the "performance of a nondramatic literary or musical work or of a dramatic-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly."  Huckabee claims that because "Eye of the Tiger" isn't incorporated or performed in musical theater, it is a nondramatic musical work for purposes of the Copyright Act. Therefore, because he considers the Davis rally to be a "religious assembly," the alleged improper use of the song does not constitute infringement under the Copyright Act.

Apparently "Eye of the Tiger" is a popular tune along the campaign trail, as this isn't the first time that Rude Music filed a lawsuit against a presidential candidate for using its song at a rally. Newt Gingrich was sued by Rude Music in 2012 after Rude Music claimed that Gingrich played "Eye of the Tiger" at events going back as far as 2009. In any case, Huckabee will still need to start "risin' up to the challenge of [his] rival," only now his opponent is an 80s rock star instead of other Republican hopefuls, since, as the Iowa Caucus results proved, Huckabee wasn't a Survivor after all. 

Cami Li Cannot Compete

On November 13, 2015, BPI Sports, LLC ("BPI"), a distributor of sports nutrition supplements, filed a Complaint against its former endorser Camila Figueras – fitness model, glamour girl, reality tv presence, and self-proclaimed Elvis fan (the image of the King graces her right forearm) (BPI Sports, LLC v. Camila Figueras, No. 132015CA026411000001 (Fla. 11th Jud. Cir., Miami-Dade Cty. filed 2015)). Camila Figueras, a/k/a Cami Li, gained notoriety through her appearances on Celebrity Big Brother and, it seems, even in the world of social media marketing agreements, Big Brother is always watching. Indeed, the current action stems from Cami Li's Instagram endorsement of a competitor's nutritional products, purportedly a violation of the non-compete clause contained in her endorsement agreement with BPI entered into last year.

The one-year endorsement agreement was set to expire on July 13, 2015, at which point Cami Li met with BPI and apparently swung for the fences when she demanded that BPI renew the agreement and increase her compensation. Unfortunately, as Cami Li learned, when you swing big, sometimes you strike out (who out there remembers slugger Dave "King Kong" Kingman?). BPI balked at her compensation request and the parties ultimately decided to terminate the agreement. While parting ways, BPI allegedly reminded her to stay out of foul territory and not violate any of the covenants contained in the agreement.

BPI claims that the endorsement covenants bar Cami Li from, among other things, endorsing any supplement or nutritional product line, representing any nutritional companies, or providing any nutritional advice without BPI's approval for a period of 12 months after the termination of the agreement. No rookie when it comes to the law, Cami Li thought she was in good shape. According to BPI, she responded to its reminder not to run afoul of the non-compete provisions with a flippant text: "[I] don't care.... Sue me," and proceeded to hit the ground running with other marketing deals.

According to the Complaint, Cami Li almost immediately began a social media marketing campaign through her Instagram account (which currently has over 482,000 followers). Beginning in August 2015 and continuing through November 2015, Cami Li posted Instagram pictures and captions endorsing Raveolution Recovery Formula, Flat Tummy Tea, and Protein World's Carb Blocker and The Slender Bend. These nutrition supplements have uses ranging from replenishing the body and mind to boosting energy and metabolism to weight loss to strengthening skin, hair, and nails.

Not amused by Cami Li's posts, BPI supplemented its stern warnings with direct action. BPI's suit alleges that Cami Li breached the endorsement covenants because her Instagram posts endorsed a competing supplement within the non-compete period, all without BPI's approval.

Recognizing the power of social media in marketing, BPI seeks injunctive relief to prevent Cami Li from endorsing nutritional supplements on social media or otherwise, positing that given the quantity of followers and her image, she holds significant economic endorsement value. According to BPI, Cami Li's influence has the potential to irreparably harm the goodwill and business interests of its company by directing her followers to rival product lines within the sports nutrition industry. BPI seeks monetary damages for breach of contract as well as an order requiring Cami Li to take down the offending Instagram posts and any other related posts she published on the Internet. In her Answer, Cami Li sought to evict BPI from the courthouse, asserting several defenses, including, among others: BPI's selective enforcement or waiver of the non-compete clauses, BPI's alleged failure to meet the requirements for injunctive relief, BPI's alleged failure to plead cognizable damages for breach of contract, and a general assertion that the non-compete clause is overbroad.

Will the restrictive covenant be enforceable under Florida law or otherwise warrant injunctive relief, or will the suit fall flat as a well-sculpted tummy?  The answer will have to remain unknown – as, earlier this month, the parties settled the matter on undisclosed terms.

Dutch Privacy Watchdog to Nike - You Can't Just Do It

The mobile fitness industry has grown $400 million in the last six years. In 2015, mobile fitness apps generated more than $3 billion in venture-capital investment, up from $1.3 billion in 2012. Millennials, the largest generation since the Baby Boomers, are clearly setting the pace. According to a recent study, one in three Millennials, a group that spends more on health and fitness consumption than any previous generation, shares fitness-related information over text, social media, or email at least once per week. Considering that the wearable technology industry is expected to triple in size in the next five years, growth in the market for fitness and activity tracking apps shows no signs of abating. Yet, at least one European privacy authority thinks developers of these popular apps should slow down, towel off, and re-think data retention and privacy concerns.

In November, the Dutch Data Protection Authority (the "CBP"), a supervisory body engaged to enforce personal data protection laws, published a report outlining several alleged violations of Dutch data protection law following its investigation into Nike's fitness app, the Nike+ Running app ("Nike+"). Nike+ is an app for a smartphone with capability to be synced with tracking sensors in running shoes or with other wearable devices.

The CBP asserted that Nike violated Dutch privacy law based on two premises: first, that the Nike+ app collected "data concerning health" of its users, thereby triggering stricter privacy protections; and second, that Nike did not sufficiently inform users in its privacy notices about the types of personal data it collects and processes and, as such, users of the Nike+ app had not given requisite consent to the specific ways in which Nike processed health data.

The Nike+ app tracks distance, speed, time, and calories burned during a user's running workout. To calculate the amount of calories burned and stride length, users were asked to specify their gender, body length, and weight before the first workout. Using such information in connection with GPS technology, Nike+ is able to track the user's performance over a workout session. According to the CBP, data from individual workout sessions was not only captured on a user's device, but also was retained indefinitely on Nike's servers, allowing Nike+ to build a profile for each user, track workout progress, compare segments of an individual's performance against comparable user groups, and otherwise use the data for its own analytic purposes. The CBP concluded that the collected data, when treated individually, are snapshots of a user's physical condition, but if retained indefinitely as part of a user profile, Nike+ could deduce a user's physical condition over time. Thus, the CBP found that such data qualifies as "data concerning health" and developers of fitness tracking apps must satisfy statutory exceptions and obtain, for example, "explicit consent" before processing such data.

The CBP also found that the disclosures in the Nike+ privacy policy were not sufficient to establish explicit user consent for all the ways the data is used. Specifically, the CBP claimed, among other things, that the Nike+ privacy policy did not clearly explain that collected data was stored indefinitely on Nike servers (absent a user actively deleting her account). The Dutch agency also claimed that the policy did not explain in detail that the aggregation of the data involves an overview of an individual's athletic performance over time, for uses that include research and analysis by Nike. According to the CBP, more specific disclosures about the extent of processing of health data over time were necessary for a user to give "explicit consent" to the fitness app.  

Following the CBP's investigation, Nike agreed to take measures to remedy any Dutch privacy violations. These include: notifying existing users of the app (and Nike+ users on the web) that height and weight are optional, and asking them for consent to retain existing data; introducing a single privacy policy with greater disclosures and a data retention period for inactive users. In the end, the Nike+ investigation provides valuable guidance for the mobile health industry regarding privacy issues.  Particularly with respect to the privacy of users in the EU, the message to mobile fitness app developers is clear – you really can't just do it (without proper notice).

Three Point Shot - February 2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.