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The Appellate Court of Illinois has sided with the estate of late singer James Brown in a case against the Corbis photo agency, ruling that Brown¹s right of publicity claim is not preempted by the Copyright Act and that offering copyrighted images online for license may have required Brown¹s permission. Corbis was accused of violating Brown¹s right of publicity by licensing images without obtaining authorization to use his likeness. On a motion to dismiss, Corbis argued that the offering licenses of copyrighted materials via a Web site was not an unauthorized commercial use of the images and therefore not a violation of Brown¹s right of publicity. The court denied the motion, which was affirmed. Corbis argued that Brown¹s case was ³premised on an unprecedented legal theory that a copyright for a photograph of an individual cannot be licensed unless the publicity rights are obtained by the licensor, not the end user, without regard to the ultimate use of the photograph.² Corbis argued that the image was a ³vehicle of information,² much like a news report, and that allowing Brown to charge a fee for the right to use his image for news coverage would violate the First Amendment and the state¹s Right of Publicity Act. But because the images were ³merchandise,² as the court determined, a material and genuine disputed question of fact remained as to the applicability of the Right of Publicity Act , so the trial court¹s refusal to dismiss the matter was appropriate.
The Brown parties were represented by Arthur Gold and Bill Coulson of Gold & Coulson in Chicago.
Corbis was represented by Mary Pat Benz, Matthew Sullivan and Julie Bauer of Winston & Strawn in Chicago.
The case is Brown et al. v. ACMI Pop Division et al., Docket No. 1-06-0870 (Aug. 2).
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