RENEE MONTAGNE, Host:
James Brown was called the hardest working man in show business when he was alive, and now the soul singer's musical signature was hard-driving, rhythmic sound...
(SOUNDBITE OF SONG, "GET UP OFFA THAT THING")
MONTAGNE: (Singing) Get up off of that thing, and dance until you feel better...
MONTAGNE: It is not James Brown's music that's an issue in a court battle in Illinois but it's his image. The litigation pits the estate of the late Godfather of Soul against the Corbis Corporation, and that's a giant stock photo company founded by Father of Microsoft, Bill Gates. And now Illinois lawmakers have joining the fray. NPR's Cheryl Corley reports.
CHERYL CORLEY: You've likely seen one of those concert photos of James Brown - sweat pouring off his face, his features twisted with emotion. The attorney for Brown's estate, William Coulson, says when a phone card company put one of those images on its cards, Brown's right of publicity was violated.
MONTAGNE: And the right of publicity is the right to your image and your voice and other personal characteristics. And you are protected from the commercial use by somebody else of your image. It's a little different from copyright. You can copyright a song and you can copyright a movie - that is a tangible work of art that you copyright. But rights of publicity are quite different.
CORLEY: Here's how: if a photographer takes a photo, that's an original work, intellectual property the photographer owned. It's copyrighted. But the subject of that photo must grant permission before it's used on a product like a T-shirt or a mug. Celebrities typically charge a licensing fee for that use. That's called a right of publicity, and it's a law in about 20 states.
Coulson points to a doll on his desk as an example.
MONTAGNE: And this is authorized by Mr. Brown when he was alive and now by his estate. So you want to hear him now?
CORLEY: Yeah, let me hear him.
(SOUNDBITE OF SONG, "I FEEL GOOD")
MONTAGNE: I feel good, I knew that I would...
CORLEY: News outlets are exempt from right of publicity laws, and they often, along with advertisers and collectors, turn to the Corbis Corporation for photographs. The Corbis archive is one of the world's largest. It has millions of photos on its Web site. It's sort of like a middleman, negotiating copyright deals with photographers and charging users a licensing fee.
All right. So now let's take a look at the Corbis Web site. Do a search for James Brown.
(SOUNDBITE OF TYPING)
CORLEY: Oh, here's a good one. James Brown performing at the Rock and Roll Hall of Fame show. And there he is in his white suit, black gloves, sweating.
(SOUNDBITE OF SONG, "PLEASE, PLEASE, PLEASE")
MONTAGNE: (Singing) Please, please, please, please...
CORLEY: Corbis has about 300 photos of James Brown online. While the company warns customers they must get permission if they plan to use the image in a commercial way, Coulson and the Brown estate say that because Corbis is charging for the images, it too must seek permission, in effect challenging the archive's fundamental business model.
MONTAGNE: We allege that they were selling Mr. Brown's concert photographs over the Internet without his consent and they were doing it, we alleged, for commercial purposes. And if they're going to sell his photographs, they may have to share part of the sale with whoever the photographer is who has a copyright, but they also, under the rights of publicity, have to give a portion of that money to Mr. Brown.
CORLEY: Corbis's attorney, David Green, scoffs at that notion.
MONTAGNE: Corbis makes a profit based upon its license of the copyright. No different than if the photographer were to sell that image directly.
CORLEY: And just like Brown's attorney, David Green has a prop - this one to illustrate the line between copyright and the right of publicity. It's a little racecar with a picture of the late actor and racing enthusiast Steve McQueen on the front.
MONTAGNE: When the manufacturer who produced the toy car went to go make this and do the product packaging, they went to the studio and they got the rights to use the media, the photographs and the footage and the stills from the movie "Bullitt." Then they came to the Steve McQueen estate and they secured the right to use the name and the image of Steve McQueen separate and apart from the photographs.
CORLEY: Corbis sought to have the lawsuit from the Brown estate dismissed, but a circuit court ruled that the estate did have a claim worth hearing, and a higher court upheld the ruling. So Corbis did what it has done in a couple of other states: it went to Illinois lawmakers and lobbied them to change the state's right of publicity law.
State Senator John Cullerton agreed, saying the court rulings show there's some confusion over the intent of the Illinois law.
S: It's after that photograph is transferred somewhere where they start to make a commercial benefit. That's when, under our statute, the way I understand it, the way we wrote it in 1998, that's when the rights to make money go to the person who's in the image.
CORLEY: Although both chambers of the Illinois legislature approved amending the law, Cullerton's bill stalled before it reached the governor's desk. State Representative Monique Davis asked her colleagues to reconsider their vote.
S: It is an attempt to pass a law that would influence the court case as well as keep a company from being liable for payment to the James Brown family.
CORLEY: Lawmakers are expected to take up the right of publicity law again later this year. But even as the court case continues, Corbis says it's hoping one day it will be able to strike a deal to do more than license Brown's images online. There's already a doll, so maybe it's something like James Brown's hot pants?
Cheryl Corley, NPR News, Chicago.