Hardest Working Lawyers in Showbiz

Photo © Michael Ochs Archives/Corbis

The late great James Brown was not much for tidy endings. In his legendary shows, he always liked to stage a fake "collapse" toward the end, with band members dramatically reviving the Godfather of Soul for one last encore. After his death on Christmas Day in 2006, his will, possessions, and even burial place were hotly disputed by those he left behind. Now, the attorneys for Brown's estate are caught up in a posthumous battle with another entertainment giant — Corbis Corp. — over the commercial usage and "right of publicity" to photographs of Brown. (Above is one of Corbis's images of Brown, by music photographer Michael Ochs, showing dance moves to the game host of The Lloyd Thaxton show in 1964.)

A fascinating story about the case broadcast today by National Public Radio explains the convoluted issues at stake: The Brown estate is directly challenging Corbis, it says, because the photo archive charges its own fees for the usage of James Brown pictures in the Corbis library, without permission or compensation to the estate. (The lead estate attorney is William Coulson, pictured at right with a James Brown doll.) "Coulson and the Brown estate argue that because Corbis charges for the images, it too must seek permission, in effect challenging the archive's fundamental business model," says the story by NPR's Cheryl Corley.

Ever the innovative and, some would say, aggressive legal foes, Corbis and parent company Microsoft have responded by asking the Illinois legislature to change the right of publicity laws in the state, site of the original court battle. A more in-depth article on this running case is at the Chicago Tribune's website. The Illinois legislature drafted a bill that stalled, but is expected to be taken up again later this year. The results of this Battle of the Titans could have widespread and lasting effects on celebrities' right-of-publicity laws. At the moment, no telling which side will end up singing "I Feel Good." — Jack Crager

Comments

[MarcW]

I am a lawyer who practices IP law in Illinois, and in my professional opinion, this lawsuit is insane.

If the IL ROPA is interpreted the way Brown's estate wants it to be, it will fall to the First Amendment. Guaranteed. News photographers have the right to license editorial photographs even in a for-profit venture, news agencies have the right to use them editorially even in a for-profit venture. Iron-clad, black-letter Constitutional law.

There is a principle of statutory construction which says that if you can interpret a statute in a way that makes it unConstitutional, and in another way that makes it Constitutional, you should interpret it so as to implement the intent of the legislature within the restrictions of the Constitution. IL's statute has ALREADY been interpreted this way in IL cases - in one notable case, a fellow who was being reported on unfavorably tried to sue a news outlet on the grounds that since they sold papers/newscast ads at a profit, their showing his picture was a commercial use. Didn't work. The law clearly exempts editorial usage and, as I said, his interpretation would run afoul of the First Amendment anyway.

If the Legislature wants to clarify this statute, they are welcome to for all of me, but it doesn't need to. Brown's estate is on a complete fishing expedition.

M

[funlovin]

M, I believe the lawsuit is referring to commercial usage understood as advertising, marketing etc. In these cases Corbis advices clients to always seek permission from the estates or rights owners but doesn't charge for it since Corbis doesn't represent the content but only the photographer's rights. With some exceptions: Corbis represents exclusively the Einstein and Steve McQueen estates amongst others. So they won't sell an Einstein or McQueen pic for commercial purposes without clearing it first through the rights owners. This isn't the case with James Brown.

F

F