Suit aims to get at soul of James Brown photo rights

by Ameet Sachdev

Chicago Tribune (MCT)

28 May 2008


A long-running feud between the late “Godfather of Soul” James Brown and a photo archive owned by Bill Gates, the father of Microsoft, has fallen into the laps of Illinois lawmakers.

The estate of the legendary R&B singer has sued to stop Corbis Corp. from displaying photos of Brown on the Internet without its consent. Yet before the merits of the case have been decided, Corbis has gone to Springfield, the state capital, to lobby for a bill that would protect its valuable franchise of selling celebrity photos.

At issue is Brown’s right of publicity, a legal right that prevents the unauthorized commercial exploitation of an individual. The protection has been mainly championed by celebrities who can charge licensing fees for the use of their images.

But with the popularity of YouTube and other user-generated Web sites, publicity rights are not just an issue for celebrities. The family of a Dallas teen sued Virgin Mobile in Australia after the company allegedly used a picture of the girl on a billboard that it had found on a photo-sharing Web site.

To be sure, much of the litigation on publicity rights involves celebrities. About 20 states, including Illinois, have laws that recognize the right of publicity; others provide the right through broad privacy provisions. Conflicts arise because the laws offer varying degrees of protection. In Illinois, for example, the right continues for 50 years after death. In New York, the right of publicity does not survive death.

So Marilyn Monroe’s estate took a hit in March when a federal court ruled that she was a New Yorker when she died in 1962. Her estate had argued that she was a Californian, where publicity rights survive a celebrity’s death.

Brown’s case delves into complex distinctions between copyright and right of publicity.

Seattle-based Corbis, which Gates founded in 1989, has a collection of more than 100 million images, including iconic shots of Monroe, Albert Einstein and other celebrities. More than 4 million are available on its Web sites. The company either owns the copyrights of the pictures or has approval to resell them.

Corbis warns customers that if they intend to use the photos for a commercial purpose, such as selling T-shirts, they have to get permission from the subjects in the image. Buyers who use Corbis photos for legitimate news-gathering purposes, such as newspapers, do not have to obtain permission.

In 2002, Brown sued Corbis in Cook County Circuit Court for violating his publicity right by selling photos of him on the Internet. Corbis has about 250 images of Brown, who died in 2006, on its site, selling them for a few hundred dollars to a few thousand, a firm spokesman said.

The company moved to dismiss the complaint, arguing that offering copyright licenses through a Web site was not an unauthorized commercial use. Corbis contends in court papers that it “never used images of Brown to sell or advertise any `product, merchandise, goods or services’ as required for application of the Publicity Act nor does Corbis sell images of Brown.”

Cook County Judge Allen Goldberg found that Brown had a claim. “What Corbis omits, however, is that it itself is selling a product, copyrights, and promoting such copyrights by use of another’s image without the other’s consent,” he said in a July 2004 ruling.

The trial judge’s opinion has “scary language” that suggests licensing a photograph, regardless of use, potentially infringes on publicity rights, said Dave Green, Corbis’ associate general counsel. “That really shocked everyone.”

Corbis appealed Goldberg’s decision to a higher state court. In August 2007, an appellate court found that Goldberg did not err in denying Corbis’ motion to dismiss and ordered further trial proceedings. Corbis asked the Illinois Supreme Court to review the appellate court decision, but the court declined.

In February, a few months after the Supreme Court setback, state Sen. John Cullerton , D-Chicago, proposed changes to the Illinois right-of-publicity statute. One of the suggested amendments would allow organizations to license rights to photos without being liable if the customer uses it illegally - legalizing Corbis’ business model. State Rep. John Fritchey, D-Chicago, introduced similar legislation in the House of Representatives.

“Corbis came to me to correct what they think is a misinterpretation of the statute,” Cullerton said. Fritchey did not return phone calls.

Chicago lawyer William Coulson, one of Brown’s attorneys, said he cannot understand why the legislature wants to rescue an out-of-state corporation during a pending court case. His wife, state Rep. Elizabeth Coulson, R-Glenview, has recused herself from the matter.

The Illinois and Chicago bar associations also have weighed in against the bill. So has one of the original drafters of the law, which was enacted in 1998.

“To include the exemption for whatever reason will undermine the purpose of the act,” said Jonathan Jennings, a partner at Chicago firm of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson. “Changing the law to suit one party’s business model is not the way to go, especially if the litigation is not over.”

Corbis officials have suggested that the court rulings could harm the media’s ability to buy its photos. The Illinois Press Association initially supported the bill. But after closer inspection, “we don’t have a dog in that fight,” said Don Craven, the group’s general counsel.

Despite opposition, the bill received overwhelming approval in the Senate. A House vote is expected this week.

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