During his presidential campaign last September, former Arkansas Governor Mike Huckabee made a well-publicized appearance at a rally for Kim Davis, the Kentucky clerk who was jailed for refusing to issue marriage licenses to same-sex couples. As Mr. Huckabee introduced Ms. Davis, a sampling from the famous song “Eye of the Tiger” played over loudspeakers. Mr. Huckabee did not have permission from the song’s authors to use it and he has now been sued for copyright infringement as a result.
Presumably, Mr. Huckabee knows a thing or two about copyrights. He is the author of at least a dozen books and he plays the electric bass in his band, Capitol Offense. However, in a recent court filing, Huckabee raised several affirmative defenses to the claim of copyright infringement, arguing in part that his use of the song was fair use under the Copyright Act because it “was of a non-commercial and religious nature, signifying joy and praise at the release of Mrs. Davis from confinement,” and because it occurred at a “religious assembly.”
This article focuses on the “Religious Assembly” defense invoked by Huckabee, under Section 110 of Title 17 of the United States Code. It reads as follows: “Notwithstanding the provisions of Section 106 [17 U.S.C. § 106, which sets forth the exclusive rights a copyright owner has], the following are not infringements of copyright: . . . (3) performance of a non-dramatic literary or musical work or of a dramatico-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 . . . .”
Is Huckabee’s Religious Assembly defense likely to succeed? Let’s look at the facts.
1. The rally occurred on public land, outside the jailhouse where Ms. Davis had been incarcerated.
2. Although the rally included references to the Bible and several attendees carried small crosses, no particular religious group or church claimed to have sponsored the event.
3. Even though the attendees of the rally included conservative Christians, no single faith or church has been identified as making up the majority.
4. The Kim Davis rally was not necessarily being described as a religious gathering before Huckabee filed his answer to the copyright infringement complaint.
5. Huckabee’s campaign staff attended the rally and promoted it on the campaign’s website.
6. Although Huckabee’s speech described his Bible-based beliefs concerning marriage, his main focus was that the Founding Fathers and the Constitution prohibit the Supreme Court from deciding, as it did last summer in the Obergefell case, that same-sex couples have a constitutional right to marry, and that therefore Ms. Davis was legally justified to refuse to issue marriage licenses to same-sex couples.
While there were religious references woven into the rally and into Mr. Huckabee’s comments, the rally was not a church service or something similar to it. These facts cast into doubt that the rally was a “religious assembly.”
Furthermore, as a matter of policy, if freedom of religion is discussed at a gathering, or a meeting begins with the recitation of the Pledge of Allegiance with its reference to “one nation under God,” does the entire event then qualify as a “religious assembly”? Could jihadists who invoke the name of Allah during their meetings claim the exemption? Where does one draw the line?
Only a handful of written court opinions analyze the Religious Assembly exemption and none of them are particularly applicable here. In Simpleville Music v. Mizell, two radio stations that broadcasted songs without permission performed during church services argued that the Religious Assembly exemption insulated them from liability for copyright infringement. This position was rejected. While playing songs to an audience at church may qualify for the Religious Assembly exemption, broadcasting those same songs to a general audience over the radio does not qualify because “such broadcasts are not ‘at a place of worship or other religious assembly.’”
In another case directly addressing Section 110(3), World Wide Church of God v. Philadelphia Church of God, Inc., the United States Court of Appeals for the Ninth Circuit held that distributing copies of copyrighted religious texts without a license to church members was not a “performance” of a work that would qualify for the Religious Assembly exemption. While the defendant church could quote from the copyrighted work during a church service, it could not copy the entire work and distribute it to the congregation.
Although not a case addressed specifically to Section 110(3), Henley v. DeVore, 733 F. Supp.2d 1144 (C.D. California 2010) involved the use by a political candidate of well-known pop songs during a campaign. In Henley, a candidate for the U.S. Senate seat in California modified two songs made famous by plaintiff Don Henley and aired them in two online videos. Thus, the song “All She Wants to do is Dance” became “All She Wants to do is Tax”, and “The Boys of Summer” became “The Hope of November”. There, the defendant claimed fair use, but the court in a very detailed opinion held otherwise.
It is worth noting that the Huckabee case is in its early stages. Huckabee filed his Answer to the Complaint on January 4, 2016, and the court held a status hearing ten days later, setting a Settlement Conference for March 11, 2016, among other deadlines. Now that Huckabee has formally withdrawn from the presidential race, it remains to be seen whether the case will go forward at all. Nonetheless, the invocation of the “Religious Assembly” exemption by Huckabee raises thought-provoking questions about the relative weight to be given constitutional rights to free speech and to the free exercise of religion in connection with political campaigns where an artist’s copyrighted work is used by the candidate without the artist’s permission.
 Rude Music, Inc. v. Huckabee for President, Inc., No. 1:15-cv-10396, United States District Court for the Northern District of Illinois [Doc. 17, p. 8].
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