Court fight brews over use of University of Kentucky fight song

Music company sues Papa john's over right to use 'on! On! U of K'

gkocher1@herald-leader.comApril 26, 2011 

The University of Kentucky's fight song is the subject of a fight in federal court.

A New York music-publishing company has sued Papa John's, the Louisville-based pizza company, alleging unauthorized use of On! On! U of K in a television commercial.

In a suit filed March 31 in U.S. District Court for the Southern District of New York, Bro 'N Sis Music Inc. claimed that Papa John's did not seek or obtain a license to use the song.

Further complicating the issue Monday, UK spokesman Jay Blanton said it is UK's "belief" that the university has "exclusive proprietary rights" to the fight song. Blanton would not comment further.

UK was not named in the suit. Papa John's International Inc., which bills itself as the world's third-largest pizza company, and Papa John's USA Inc. were named as defendants.

"Papa John's has unfairly profited from these acts of infringement, both by avoiding payment of licensing fees for its infringing use of the song, and also by generating revenues from the infringing advertisements," the suit said.

Bro 'N Sis Music "has attempted to negotiate a resolution to this dispute with Papa John's but was ignored in those efforts," the suit said.

A spokesman for Papa John's said Monday that it is an official corporate sponsor of UK Athletics.

Under a marketing agreement with the sports marketing company IMG, Papa John's was "advised in writing" that it has permission to use the UK fight song in its advertising, said Chris Sternberg, senior vice president of corporate communications.

"We were kind of surprised when this lawsuit was filed," Sternberg said.

Papa John's began using the TV commercial with the fight song in December, when it was first broadcast in connection with college basketball games, the suit said. UK men's basketball coach John Calipari appeared in the commercial, the suit said.

"At no time did Papa John's request or obtain a license" for use of the fight song, the suit said.

After becoming aware of the commercial, Bro 'N Sis wrote to Papa John's and demanded that it "cease its infringing conduct. Papa John's never responded to this letter," the suit said.

Bro 'N Sis Music asks that Papa John's be restrained from any use of the fight song. The music publisher also asks that Papa John's destroy all copies of the commercial in its possession.

The music publisher also asks that it be awarded damages and profits from the infringement in an amount to be proved at trial "of not less than $150,000."

No hearing is scheduled in the case.

The music for On! On! U of K was written in 1922 by UK professor Charles A. Lampert, the first chairman of the UK music department. The lyrics were written in 1923 by student Troy Perkins, who won a $5 prize in a contest Lampert set up for the best lyrics to the music.

The song was subsequently adopted as the UK fight song.

Federal copyright for the song was secured in 1925. Lampert's widow renewed the copyright in 1952 on behalf of herself and Perkins, the suit said.

In 1941, before his death, Lampert assigned his copyright interest in the song, including all renewal terms, to Thornton Allen Co. Bro 'N Sis is the successor in interest to Thornton Allen Co., the suit said.

The copyrights of Bro 'N Sis Music are administered by Carlin America Inc., which says it gained control of the UK fight song, along with the fight songs of about 100 other universities, in 1999 when it bought another publishing company, Paxwin/Paxton Music Inc.

Carlin licenses the songs for use in a variety of ways.

The Carlin catalog also includes copyrights to such classics as Chantilly Lace, The Twist, Under the Boardwalk and What a Wonderful World.

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