Preemption: I Feel Good

The hardest working man in show business is dead, but before he passed on he filed suit against Corbis Corporation and others for licensing photographs of him, allegedly in violation of his right of publicity. An Illinois state appellate court just held in favor of his alleged representatives that the claim is not preempted by the Copyright Act, James Brown v. ACMI Pop Division, No. 1-06-0870 (Ill. Ct. App. 4th Div.)(H.T. to C.E.Petit).

The decision affirmed a trial court that had radically changed its mind, first holding the claim was preempted and then changing course and holding it wasn’t. At least the sequence was correct. Both courts relied on the 7th Circuit’s opinion in Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005), a reliance that was fitting given that the 7th Circuit had itself engaged in the same flip-flop. See earlier posting here.

Defendant relied on Laws v. Sony Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006), which was the wrong circuit and the wrong facts. In Laws, the complaint was about a sound recording and not about plaintiff’s voice as an attribute of her separate identity. See earlier posting here. In both Toney and Brown the complaint was about the use of identity apart from any particular fixation even though obviously the right of publicity is violated by a particular fixation. Under those facts, at least facially, such claims are not preempted.