{ "id": 4272733, "name": "JAMES BROWN et al., Plaintiffs-Appellees, v. ACMI POP DIVISION, a Division of Conquest Operator Services Corporation, et al., Defendants-Appellants", "name_abbreviation": "Brown v. ACMI Pop Division", "decision_date": "2007-08-02", "docket_number": "No. 1-06-0870", "first_page": "276", "last_page": "289", "citations": [ { "type": "official", "cite": "375 Ill. App. 3d 276" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "448 F.3d 1134", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3113446 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "1138" }, { "page": "1139" }, { "page": "1142" }, { "page": "1136" } ], "opinion_index": 0, "case_paths": [ "/f3d/448/1134-01" ] }, { "cite": "406 F.3d 905", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1095716 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "908" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/f3d/406/0905-01" ] }, { "cite": "17 U.S.C. \u00a7301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "567 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2547177 ], "year": 1990, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0377-01" ] }, { "cite": "629 N.E.2d 1145", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383276 ], "year": 1994, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0567-01" ] }, { "cite": "989 F.2d 1512", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10518669 ], "year": 1993, "pin_cites": [ { "page": "1513, 1519", "parenthetical": "Kozinski, J., dissenting from denial of rehearing en banc, joined by O'Scanlain and Kleinfeld, JJ." } ], "opinion_index": 0, "case_paths": [ "/f2d/989/1512-01" ] }, { "cite": "43 F. Supp. 2d 933", "category": "reporters:federal", "reporter": "F. 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App. 3d", "case_ids": [ 3467335 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "495" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0476-01" ] }, { "cite": "96 L. Ed. 1098", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1952, "pin_cites": [ { "page": "1106" } ], "opinion_index": 0 }, { "cite": "343 U.S. 495", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11340482 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "501-02" }, { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/us/343/0495-01" ] }, { "cite": "259 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "45 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895152 ], "weight": 4, "year": 1970, "pin_cites": [ { "page": "441" }, { "page": "441" }, { "page": "441-42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0434-01" ] }, { "cite": "652 N.E.2d 1351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1355" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 742", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258665 ], "year": 1995, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0742-01" ] }, { "cite": "106 N.E.2d 742", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "347 Ill. App. 293", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5091472 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-app/347/0293-01" ] }, { "cite": "836 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "361 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259827 ], "year": 2005, "pin_cites": [ { "page": "563-64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0538-01" ] }, { "cite": "17 U.S.C. \u00a7101", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1289, "char_count": 31150, "ocr_confidence": 0.772, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3275997944281694 }, "sha256": "ed41f41591ccddedddefcc1b75a99b60f11816bcc59f1e0c65b68bde1f68d207", "simhash": "1:2b86f6176f6319b0", "word_count": 5048 }, "last_updated": "2023-07-14T20:53:12.225665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES BROWN et al., Plaintiffs-Appellees, v. ACMI POP DIVISION, a Division of Conquest Operator Services Corporation, et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nThis is an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Plaintiffs, singer and recording artist James Brown, The New James Brown Enterprises, Inc., and Jesus Muhammad-Ali, filed a complaint against defendant, the Corbis Corporation (Corbis), a company that licenses copyrights for stock photographs and images, seeking damages and other relief in connection with Corbis\u2019s display of photographic images of James Brown on Corbis\u2019s Web site. Corbis appeals from the trial court\u2019s denial of its motion to dismiss counts III and VT of plaintiffs\u2019 amended complaint.\nOn March 22, the trial court certified the following questions for appeal pursuant to Supreme Court. Rule 308:\n\u201c1. Whether the circuit court erred in denying Corbis\u2019s motion to dismiss counts III and VI under 765 ILCS 5/2 \u2014 619 and in rejecting Corbis\u2019s argument that the undisputed facts show that Corbis did not use photographs of James Brown for an improper commercial purpose under either the Illinois common law or the Illinois Right of Publicity Act, 735 ILCS 1075/1, et seq.\u201d-,\nand\n\u201c2. Whether the circuit court erred in its July 23, 2004, order and memorandum opinion by holding that the U.S. Copyright Act does not preempt the claims asserted by Plaintiffs in counts III and VI of the amended complaint.\u201d\nThe Archive Council of America (ACA) filed an amicus curie brief in support of Corbis\u2019s position.\nFor the following reasons, we answer each of the certified questions in the negative, affirm the judgement of the trial court, and remand this matter for further proceedings consistent with this opinion.\nBACKGROUND\nThe late James Brown was a professional singer and recording artist of international renown. In October 2002, Brown filed a multicount complaint against, inter alia, Corbis, alleging that Corbis infringed Brown\u2019s right of publicity through Corbis\u2019s unauthorized commercial use of his image on the Internet. In counts III and VI, respectively, Brown alleged that Corbis\u2019s Internet sale of photographs of Brown violates Brown\u2019s right of publicity under common law and the Illinois Right of Publicity Act (765 ILCS 1075/1 et seq. (West 2002)) (Publicity Act).\nOn January 13, 2003, Corbis filed a motion to dismiss counts III and VI of Brown\u2019s complaint pursuant to sections 2 \u2014 615 and 2 \u2014 619 of the Illinois Code of Civil Procedure. 735 5/2 \u2014 615, 2 \u2014 619 (West 2002). In support of its section 2 \u2014 619 motion, Corbis submitted the affidavit of its senior corporate counsel, Dave Green. Green testified that Corbis is in the business of licensing copyrights for photographs and other artistic images. Corbis either owns the copyrights to those images or is authorized to license the copyright to those images on behalf of photographers and artists whom Corbis represents and to whom Corbis pays royalties. Corbis displays a catalogue of over 2.1 million photographic images it owns on its Web site so that customers can identify the images they choose to license. The photographs shown on the site are either obscured with a visible watermark or are a very low resolution in order to prevent use of the images by customers prior to the execution of copyright licenses.\nGreen stated that Corbis\u2019s pricing for copyright licensing depends on the extent of the customer\u2019s proposed use and that Corbis charges a newspaper with a greater circulation a higher fee for a copyright license than it charges a newspaper with a smaller circulation because of the \u201cmore intensive\u201d use of the copyrighted work.\nGreen continued that Corbis never used images of Brown to sell or advertise any \u201cproduct, merchandise, goods, or services\u201d as required for application of the Publicity Act nor does Corbis sell images of Brown. Rather, Corbis only offers to license certain rights under federal copyright law, subject to the terms and conditions stated in Corbis\u2019s site agreement and in Corbis\u2019s licensing agreements.\nIn addition, Corbis notifies users of its Web site that Corbis does not own or license rights of publicity. The photographs of Brown at issue in this case are found in the \u201cprofessional use\u201d section of Corbis\u2019s Web site and are designated as \u201crights managed\u201d images, which contain restrictions such as conditioning the licensee\u2019s right to use the images upon obtaining all necessary third-party \u201crights, releases and permissions.\u201d\nBrown did not file any counteraffidavit.\nOn August 6, 2003, the trial court denied Corbis\u2019s motion to dismiss counts III and VI pursuant to section 2 \u2014 615, but granted the motion pursuant to section 2 \u2014 619. The trial court held that Corbis\u2019s actions as a \u201cvehicle of information\u201d are noncommercial and therefore Brown has no actionable right of publicity either under common law or the Publicity Act. In addition, the trial court held that Corbis\u2019s rights under the federal Copyright Act of 1976 (Copyright Act) (17 U.S.C. \u00a7101 et seq. (2000)), prevent any claim Brown might have based on his right of publicity. The trial court held that Brown\u2019s right of publicity is equivalent to one of the rights specified in section 106 of the Copyright Act and gives the copyright holder, Corbis, the sole right to distribute images of Brown.\nHowever, on July 23, 2004, upon Brown\u2019s motion for reconsideration, the trial court completely reversed its initial holding. The trial court, recognizing that it previously held that Corbis was exempt from liability for violating Brown\u2019s right of publicity as a \u201cvehicle of information,\u201d determined that it had previously erred in applying the law and reasoned that the exception applied only if the images sold by Corbis are used for the purpose of disseminating news or other public interest information. The trial court held that in light of the fact that Corbis sells pictures to various categories of customers, some of whom are not news media but, rather, private or commercial users, Brown\u2019s right of publicity is at issue. The trial court further held that Corbis may be liable either directly or indirectly of \u201cturning a blind eye\u201d to possible copyright infringements.\nOn September 17, 2004, Corbis filed its motion to reconsider the trial court\u2019s order of July 23, 2004. Corbis also moved to certify three questions of law for interlocutory appeal pursuant to Supreme Court Rule 308. On March 22, the trial court denied Corbis\u2019s motion for reconsideration and certified the two questions noted above on appeal to this court.\nOPINION\nI. Preliminary Matters\nDuring oral arguments on this case, the court took judicial notice of the intervening event of the death of plaintiff James Brown on December 25, 2006, subsequent to the filing of the parties\u2019 briefs but prior to oral arguments. This court queried the parties whether the plaintiffs had filed or intended to file a suggestion of death with this court. Plaintiffs\u2019 attorneys indicated that a suggestion-of-death filing would be made only in the trial court. Following oral arguments, this court sua sponte invited the plaintiffs to provide information regarding the status of the estate of James Brown and any change in representation that would impact our ability to issue an opinion in this case. Over a period of six months, the representatives of James Brown provided piecemeal answers to the inquiries of this court. The following is the chronology of the orders of this court, along with the responses provided by the parties:\nJanuary 25, 2007: At the outset of oral arguments, this court requests that plaintiffs file a suggestion of death with this court.\nFebruary 2, 2007: Plaintiffs, James Brown and others, file motion to suggest the death of James Brown, attaching Brown\u2019s death certificate, and to substitute three personal representatives, Alfred H. Bradley, Albert H. Dallas and David G. Cannon, as representatives of the Estate of James Brown. This motion is filed concurrently with the order of this court, dated February 6, 2007.\nFebruary 6, 2007: This court issues an order, sua sponte, requesting that James Brown inform the court regarding: (1) the substitution of parties; (2) the suggestion of death; (3) any change in representation; and (4) any change in the standing of the parties.\n\u25a0 April 12, 2007: This court issues a second order deeming plaintiffs motion filed February 2, 2007, insufficient to supply the information this court requested. The order requested that the party representing James Brown provide the following information: (1) status of the decedent\u2019s estate; the location and name of the probate court; and the location and name of executor, administrator, or representative of the estate; (2) whether the designee or representative desires leave to file an appeal brief; and (3) status as to the party\u2019s authority to continue to prosecute the appeal or whether it is necessary to substitute a party.\nMay 15, 2007: Plaintiffs file a status report. The report is signed by the three personal representatives and indicates that all three representatives desire that the appeal go forward. The representatives do not ask for leave to file an appeal brief and seek only to substitute as personal representatives of the Estate of James Brown.\nMay 21, 2007: Plaintiffs file a motion to supplement the previously filed status report. Attached to the motion to supplement is an order of the probate court of the State of South Carolina, County of Aiken, in the matter of James Brown, a/k/a James Joseph Brown, No. 2007\u2014 ES02 \u2014 0056, appointing the three personal representatives.\nJune 1, 2007: Defendant Corbis files a detailed response to plaintiffs\u2019 status report, indicating that plaintiffs\u2019 omitted pertinent information from the report and attaching several news articles from the Augusta (Georgia) Chronicle.\nJune 27, 2007: Plaintiffs file a motion to further supplement the May 15, 2007, status report, including a document entitled \u201cAuthorization of Special Administrators,\u201d but without any caption indicating that it constitutes a formal court filing, as well as a multiply-faxed copy of an attorney client agreement purportedly signed by James Brown with the law firm of Gold & Coulson.\nThe news articles from the Augusta (Georgia) Chronicle submitted by Corbis reported that, in addition to three representatives, two additional individuals, Adele Pope and Bob Buchman, were appointed as special administrators of the Estate of James Brown. The special administrators were described as being charged with overseeing the actions of the personal representatives.\nIn their supplemental motion filed June 27, 2007, plaintiffs stated that Aiken County, South Carolina, probate judge, Sue H. Roe, appointed Alfred H. Bradley, Albert H. Dallas and David G. Cannon personal representatives of the Estate of James Brown on January 18, 2007. These three individuals, who purportedly serve as both court-appointed personal representatives and cotrustees of the James Brown Irrevocable Trust, later expressed their desire to substitute as plaintiffs for James Brown, via an \u201cAuthorization of Special Administrators\u201d authorizing Gold & Coulson and Jay B. Ross to continue to represent the Estate of James Brown. The special administrators also authorize themselves to substitute as party plaintiffs in any existing litigation or future litigation related to the Estate of James Brown.\nWhile the representatives provided the authorization of the personal administrators, it remains unclear whether all of the necessary parties have filed appearances in this case. One of the trusts created upon the death of James Brown, the \u201cI Feel Good\u201d Trust, reportedly has the rights to Brown\u2019s music, likeness and image and is not named as a party plaintiff. The \u201cI Feel Good\u201d Trust was apparently created by an irrevocable trust agreement signed August 1, 2000. The three personal administrators seek to substitute as plaintiffs in their capacity as both personal representatives of the Estate and as cotrustees of the James Brown Irrevocable Trust. However, plaintiffs failed to submit to this court either the trust agreement or the order of the South Carolina probate court appointing the special administrators.\nPlaintiffs\u2019 responses, detailed above, while incomplete, do not appear to alter the posture of the parties in terms of this court\u2019s ability to answer the questions certified to this court. This court is not a finder of fact. Therefore, any issue regarding proper plaintiffs or their representation is a matter that is best resolved in the trial court.\nII. Certified Questions\nThis appeal is pursuant to Illinois Supreme Court Rule 308, which authorizes courts to certify questions for interlocutory appeal. Section (a) provides in pertinent part:\n\u201cWhen the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court\u2019s own motion or on motion of any party.\u201d 155 Ill. 2d R. 308(a).\nThe Supreme Court also authorizes the court to stay the proceedings pending resolution of the interlocutory appeal. 155 Ill. 2d R. 308(e).\nA\nInitially, Corbis contends that the trial court erred in holding that its Web site display of copyrighted images of James Brown constitutes a commercial purpose under the Publicity Act, which codifies the common law right of publicity. We review questions of statutory interpretation de novo, as they present pure questions of law. Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 563-64, 836 N.E.2d 640 (2005).\nIn counts III and VI of his complaint, Brown seeks damages and other relief for the Web site display of his images on the Corbis Web site without his consent, even when Corbis\u2019s customers do not use the photographs for a commercial purpose. Corbis argues that Brown\u2019s allegations are premised 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.\nCount III alleges infringement on Brown\u2019s common law right and statutory right of publicity. The Publicity Act, effective January 1, 1999, essentially codifies the common law right of publicity and provides in pertinent part:\n\u201cThe right to control and to choose whether and how to use an individual\u2019s identity for commercial purposes is recognized as each individual\u2019s right of publicity.\u201d 765 ILCS 1075/10 (West 2002).\nCorbis explains that the common law right of publicity is derived from the right to privacy. This court first recognized that the common law right to privacy extended to a right of publicity in Eick v. Perk Dog Food Co., 347 Ill. App. 293, 106 N.E.2d 742 (1952). The right of publicity is \u201cdesigned to protect a person from having his name or image used for commercial purposes without consent.\u201d Dwyer v. American Express Co., 273 Ill. App. 3d 742, 748, 652 N.E.2d 1351, 1355 (1995).\nCiting cases decided prior to the enactment of the Publicity Act, Corbis argues that Illinois courts have narrowly construed the right of publicity, however, to avoid infringing upon first amendment rights and other important public interests. For example, in Leopold v. Levin, 45 Ill. 2d 434, 441, 259 N.E.2d 250, 254 (1970), our supreme court held that convicted murderer Nathan Leopold of the infamous duo \u201cLeopold and Loeb\u201d failed to establish a violation of right of publicity in a fictionalized account of his life in book and movie because his crime and prosecution in 1924 \u201cremain an American cause celebre,\u201d and because of his \u201cconsequent and continuing status as a public figure.\u201d Leopold, 45 Ill. 2d at 441. The court explained: \u201c \u2018[The fact] [t]hat books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why operation for profit should have any different effect in the case of motion pictures.\u2019 \u201d Leopold, 45 Ill. 2d at 441-42, quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 96 L. Ed. 1098, 1106, 72 S. Ct. 777, 780 (1952). Corbis further cites Berkos v. National Broadcasting Co., 161 Ill. App. 3d 476, 495, 515 N.E.2d 668, 679 (1987), as a case similar to the present case. There, the plaintiff, a Cook County circuit court judge, filed claims for libel and commercial appropriation and intentional infliction of emotional distress against NBC based on a television news segment that reported on a federal criminal investigation known as \u201cOperation Greylord.\u201d The news reporters referred to the plaintiff in his judicial capacity and showed his likeness on the program. The trial court dismissed the plaintiffs entire complaint and subsequent motions to reconsider and amend the complaint. This court reversed the trial court\u2019s finding regarding the plaintiffs libel claim (Judge Jiganti dissenting), but affirmed the dismissal of plaintiffs complaint for improper commercial use of his likeness. Citing Leopold, the court found that Berkos\u2019s photograph in the broadcast was \u201cpart of a \u2018vehicle of information\u2019 such as the news media.\u201d Berkos, 161 Ill. App. 3d at 495, citing Leopold, 45 Ill. 2d 434.\nBrown responds that the trial court properly concluded that Cor-bis\u2019s display of his photos on its Web site did not constitute a part of a \u201cvehicle of information\u201d similar to a news report because Corbis sells the photos for commercial purposes as a merchandise or good, which is prohibited by the Publicity Act:\n\u201c \u2018Commercial purpose\u2019 means the public use or holding out of an individual\u2019s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services ***.\u201d 765 ILCS 1075/5 (West 2002).\nIn support, Brown cites Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 21 E3d 797, 106 Cal. Rptr. 2d 126 (2001). There, the registered owner of all rights to the Three Stooges sought damages and injunctive relief against an artist for violation of California\u2019s publicity rights act based on the artist\u2019s sale of lithographs and T-shirts bearing the likenesses of Moe, Curly and Larry reproduced from a charcoal drawing. The court held that the artist was prohibited from depicting the Three Stooges \u201con or in products, merchandise, or goods\u201d within the meaning of the publicity rights statute without the consent of the registered owner. Comedy III, 25 Cal. 4th at 395, 21 E3d at 802, 106 Cal. Rptr. 2d at 132.\nCorbis distinguishes Comedy III, arguing that that case dealt with tangible property, i.e., the display of the Three Stooges on T-shirts and lithographs. Corbis argues that it is not selling tangible property but is only transferring a legal right created by the Copyright Act. Corbis quotes Comedy III: \u201c[W]e agree with the Court of Appeal that Saderup sold more than just the incorporeal likeness of The Three Stooges. Saderup\u2019s lithographic prints *** are themselves tangible personal property, consisting of paper and ink, made as products to be sold and displayed on walls like similar graphic art.\u201d Comedy III, 25 Cal. 4th at 395, 21 E3d at 802, 106 Cal. Rptr. 2d at 132. Corbis responds that the licenses it grants for Brown\u2019s \u201cincorporeal image\u201d are purely intangible.\nCorbis concludes that the trial court\u2019s ruling conflicts with the first amendment: Brown cannot require payment for the news media\u2019s use of his image. The Fublicity Act specifically exempts \u201cuse of an individual\u2019s identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign.\u201d 765 ILCS 1075/35(b)(2) (West 2002). By way of example, Corbis notes that it recently licensed several images of Brown to Rolling Stone Magazine, which published a lengthy biographical news article about Brown. J. Lethem, Being James Brown, Rolling Stone, June 29, 2006, at 5, 55-64, 80-81. Corbis argues that had it not been able to license these images of Brown, the news media would have been impermissibly censored.\nThe parties\u2019 arguments are all compelling. However, whether the facts as alleged support Brown\u2019s action for a violation of the Publicity Act depends on how Corbis\u2019s actions are defined. In this case of \u201capples v. oranges,\u201d Corbis argues that in displaying photographs of James Brown on its Web site, it is not selling a product but rather offering to license the copyrights it holds on the photographs. Corbis argues that any action by Brown for improper use of the photos by the end user licensee lies against that end user and not Corbis.\nThe amicus party, the industry group Archive Council of America (ACA), opines that neither the Publicity Act nor the common law prohibits stock photo libraries and copyright owners from offering unreleased images to commercial users and cannot be liable for the action of the end users: the failure of end users to obtain subsequent clearances in the use of an image does not convert the licensor into an infringer. See Medic Alert Foundation United States, Inc. v. Corel Corp., 43 F. Supp. 2d 933, 940 (N.D. Ill. 1999). ACA argues that 19 states have right-of-publicity statutes, 18 have a recognized common law right of publicity and no state has ever held that the mere display of images for the purpose of licensing copyrights violates a right of publicity in and of itself: \u201cOverprotecting intellectual property is as harmful as underprotecting it,\u201d and \u201cThe broader and more ill-defined one state\u2019s right of publicity, the more it interferes with the legitimate interests of other states.\u201d White v. Samsung Electronics America, Inc., 989 F.2d 1512, 1513, 1519 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc, joined by O\u2019Scanlain and Kleinfeld, JJ.); J. McCarthy, The Rights of Publicity & Privacy \u00a7\u00a76:3, 6:6 (2d ed. 2005). The ACA warns of the evanescence of public access to historic photographs.\nThe trial court initially concluded that Corbis\u2019s \u201csale\u201d of the licenses was noncommercial and constituted a \u201cservice.\u201d However, in reversing itself, it concluded that Corbis was, in fact, selling a \u201cproduct\u201d for profit and that since Brown received no compensation from any potential unauthorized commercial use, his rights of publicity are violated.\nWhen proceeding under a section 2 \u2014 619 motion, the movant concedes all well-pleaded facts set forth in the complaint but does not admit conclusions of law. Employers Mutual Cos. v. Skilling, 256 Ill. App. 3d 567, 569, 629 N.E.2d 1145 (1994). A section 2 \u2014 619 motion should be granted only when it raises an affirmative matter, which negates the plaintiffs cause of action completely or refutes critical conclusions of law or conclusions of material, but unsupported fact. The court must deny the motion if there is a material and genuine disputed question of fact. 735 ILCS 5/2 \u2014 619(c) (West 2002); Samansky v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 208 Ill. App. 3d 377, 383, 567 N.E.2d 386 (1990).\nIn light of the vast difference of opinion regarding the interpretation of the definition of what Corbis sells and the legal effect of such sales, we cannot say that the facts are undisputed that Cor-bis\u2019s display of the photos of James Brown on its Web site did not in some way constitute an improper commercial use under either the Illinois common law or the Publicity Act. We therefore cannot conclude that the trial court erred in denying Corbis\u2019s motion to dismiss.\nFor this reason, we answer the first certified question in the negative.\nB\nNext, Corbis contends that the trial court\u2019s interpretation of the Publicity Act and the common law right of publicity violates the copyright clause of the United States Constitution, which provides that: \u201cCongress shall have the Power *** To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.\u201d U.S. Const., art. I, \u00a78, cl. 8. Corbis argues that it merely exercises its rights to reproduce and publish Brown\u2019s images under the Copyright Act and that any publicity rights held by Brown are preempted by the Copyright Act. Corbis explains that the trial court\u2019s ruling allows Illinois to regulate the subject matter of copyright and to limit or even eliminate the exclusive rights granted to copyright holders under section 106 of the Copyright Act.\nSection 301 of the Copyright Act outlines two conditions which, if met, require the preemption of a state-law claim in favor of the rights and remedies available under federal law. Section 301(a) states:\n\u201cOn or after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by section[ ] 102 *** are governed exclusively by the title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.\u201d 17 U.S.C. \u00a7301(a) (2000).\nIn making its determination, the trial court framed this case as one of first impression and relied on Toney v. L\u2019Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005). There, a model consented to the use of her photograph for a limited time in connection with the packaging of a hair care product. However, when a successor company later used her photograph without her permission, Toney filed an action under the Publicity Act alleging that her right of publicity had been violated. The Seventh Circuit held that Toney\u2019s claim survived preemption by the Copyright Act. The court determined that the subject matter of a Publicity Act claim is not a particular picture or photograph but, rather, the \u201cpersona of the plaintiff as a human being.\u201d Toney, 406 F.3d at 908. The court found that Toney\u2019s identity was not \u201cfixed in a tangible medium of expression\u201d and that the rights protected by the Publicity Act are not \u201cequivalent\u201d to any of the exclusive rights within the general scope of section 106 of the Copyright Act. Toney, 406 F.3d at 909. Thus, Toney\u2019s identity was not protected by copyright law and the state law protecting her rights was not preempted.\nCorbis, however, asserts that the subject matter of Brown\u2019s Publicity Act claims \u2014 the offering to license and the actual licensing of copyrights to photos of James Brown \u2014 does in fact fall within the subject matter of copyright. In support, Corbis relies on Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006). There, the defendant, Sony Music, obtained a license to use a vocal recording of the song \u201cVery Special,\u201d as performed by Debra Laws. Sony used a sample of the recording in a compact disc (CD) and music video featuring another artist. Sony earned substantial revenue from the sales of the CD and video without obtaining Laws\u2019 consent to use the recording. Laws brought the action alleging that Sony\u2019s use of the sample recording violated her statutory and common law rights of publicity under California law. Laws, 448 F.3d at 1138. In response, Sony argued that Laws\u2019 specific claims could not be distinguished because Laws\u2019 right of publicity was based solely on her voice \u201cembodied within a copyrighted sound recording.\u201d Laws, 448 F.3d at 1139.\nThe Ninth Circuit found in favor of Sony, holding that the two rights, the copyright and Laws\u2019 right of publicity, could not be separated. The Ninth Circuit distinguished Toney, noting that in that case, the plaintiff claimed misappropriation of her identity separate and apart from any copyrighted work. Laws, 448 F.3d at 1142.\nCorbis compares the present case to Laws and distinguishes it from Toney, arguing that Brown\u2019s likeness does not extend beyond the use of the copyrighted photos themselves. In Toney, the defendant used a copyrighted photo to endorse a product. By contrast, Corbis is using a copyrighted photo to distribute a license. Corbis argues that Brown has not asserted a right of publicity claim separate from the enumerated rights under section 106 of the Copyright Act and that his claim is a direct challenge to Corbis\u2019s right to control the distribution and display of the copyrighted images.\nBrown responds that Corbis argues a distinction without a difference. Brown argues that the images of James Brown advertised for sale on Corbis\u2019s Web site do, in fact, constitute fixed work on the Internet in that the \u201clicenses\u201d result in a tangible photograph to the end user. Brown distinguishes Laws, noting that, there, the plaintiff had contractually released control and copyright of her recording to Sony. Laws, 448 F.3d at 1136. By contrast, Brown never consented to any sale of his photographs and never possessed control of a copyright interest to release.\nUnder the circumstances, where it is possible that the photos as displayed on Corbis\u2019s Internet Web page can be interpreted as tangible, the Publicity Act as applied here would not preempt copyrights. As such, we answer the second question certified to this court in the negative.\nIn conclusion, we answer the trial court\u2019s certified questions in the negative and hold that (1) the trial court did not err in denying Corbis\u2019s motion to dismiss counts III and VI of plaintiffs\u2019 complaint under the Publicity Act; and (2) the United States Copyright Act does not preempt plaintiffs\u2019 claims. We therefore affirm the orders of the trial court and remand this matter for further proceedings consistent with this opinion.\nAffirmed.\nQUINN, EJ., and MURPHY, J., concur.\nThis appeal involves only Corbis.\nPrior to oral arguments in this case, but after the filing of all parties\u2019 briefs, plaintiff James Brown died.\nBrown alleged that six other defendants used his voice and likeness for the sale or promotion of merchandise such as phone cards and posters. No such allegations were made against Corbis.\nThe Augusta Chronicle, Brown\u2019s hometown paper, continues to meticulously report on the death of James Brown and the legal battles surrounding his estate.\nIn its complaint, Brown notes that Corbis has licensing agreements with the registered owners/estates of Marilyn Monroe and James Dean.", "type": "majority", "author": "PRESIDING JUSTICE CAMPBELL" } ], "attorneys": [ "Winston & Strawn LLP of Chicago (Julie A. Bauer, Mary Patricia Benz, and Matthew J. Sullivan, of counsel), for appellant Corbis Corporation.", "Gold & Coulson, of Chicago (William R. Coulson and Arthur S. Gold, of counsel), for appellees.", "Cowan, Dehaets, Abrahams & Sheppard LLP, of New York, New York (Nancy E. Wolff, of counsel), for amicus curiae." ], "corrections": "", "head_matter": "JAMES BROWN et al., Plaintiffs-Appellees, v. ACMI POP DIVISION, a Division of Conquest Operator Services Corporation, et al., Defendants-Appellants.\nFirst District (4th Division)\nNo. 1-06-0870\nOpinion filed August 2, 2007.\nWinston & Strawn LLP of Chicago (Julie A. Bauer, Mary Patricia Benz, and Matthew J. Sullivan, of counsel), for appellant Corbis Corporation.\nGold & Coulson, of Chicago (William R. Coulson and Arthur S. Gold, of counsel), for appellees.\nCowan, Dehaets, Abrahams & Sheppard LLP, of New York, New York (Nancy E. Wolff, of counsel), for amicus curiae." }, "file_name": "0276-01", "first_page_order": 292, "last_page_order": 305 }