On August 1, 2014, a movie about James Brown, called "Get On Up," will open nationwide. Mr. Brown is played by Chadwick Boseman, the same actor who played Jackie Robinson in the "42" movie. (Mr. Brown always insisted on being called "Mr. Brown"). The movie focuses on Mr. Brown's rise to the top of the music mountain. It does not focus on Mr. Brown's legal problems, of which there were many. I was one of Mr. Brown's lawyers for the last sixteen years of his life, and I handled some of those problems. How I became his lawyer is a story in itself.
In the 1980's, James Brown's headquarters were in a large office complex in Augusta, Georgia. Mr. Brown's office was near a restaurant and a convention hall. When the bathrooms in the restaurant or convention hall were occupied, some consumers from the other spaces would walk over to use Mr. Brown's bathroom, which was in a corridor near his office. This infuriated Mr. Brown who thought it showed disrespect to him and his associates.
On the night of September 24, 1988, his anger spilled over. He had taken some PCP earlier that evening. After hearing his bathroom being used, he grabbed a shotgun and walked over to the convention hall where some insurance agents were meeting. He demanded to know who had invaded his space. Hearing his ranting and being concerned about his flaunting of the shotgun, someone called the police. When Mr. Brown heard the police sirens approaching, he jumped into his pick-up truck and tried to escape the police by driving into South Carolina, whose border was close by. But the Georgia police continued the chase, and many South Carolina state troopers were called in to help. By the time, the chase ended, more than a dozen police cars were chasing him, and the police had shot out three of his tires and fired at his truck 23 times. He was charged with many crimes, including assault with intent to kill, for driving his truck into a police car.
The South Carolina authorities offered him a six month sentence if he pleaded guilty. He rejected the offer and insisted on going to trial, believing that a jury would be sympathetic to him. But his calculation was wrong. The jury convicted him of aggravated assault and eluding the police. The judge sentenced him, not to six months, but to six years in jail. He began his sentence on December 15, 1988 and ended up serving two years and two months.
Mr. Brown's imprisonment led to a curious advertisement campaign. In August, 1989, Kenneth Cole Shoes, the New York shoe company, was selling a product called a keyhole shoe - a shoe with a small toe hole at the front of the shoe. The company published an ad for the shoe, which appeared in Vanity Fair and Harper's Bazaar. The ad contained a picture of the keyhole shoe with a key above it, next to a picture of James Brown. The caption read: "Two Great Things with Sole under Lock and Key."
Kenneth Cole had a history of running controversial advertisements relating to famous persons, social issues or public events. http://archive.kennethcole.com/help/ In 1986, he published an ad stating: "Imelda Marcos bought 2,700 pairs of shoes. She could've at least had the courtesy to buy a pair of ours." Other ads stated: "What You Stand For Is More Important Than What You Stand In." Cole was a strong supporter of AIDS awareness and other liberal causes. Another ad read: "We All Have Aids" with a picture of nurses, doctors and other medical professionals. "In War Is It Who's Right or Who's Left." "Gay People Getting Married? Next They'll Be Allowed to Vote and Pay Taxes." Cole is married to former Governor Mario Cuomo's daughter Maria and is Governor Andrew Cuomo's brother-in-law.
Mr. Brown was in prison when the ad was published. He was finally released on February 27, 1991, after serving two years and two months, far less than the original six year sentence. On his release, he wanted to do something about the ad. His lawyers looked for a New York attorney to sue Kenneth Cole Shoes, the advertising company that prepared the ad and the two magazines where the ad appeared. But the New York statute of limitations for invasion of the right to publicity -- Brown's best claim - was one year, which had already expired. A person can sue any company that uses that person's "name, character or likeness" for purposes of trade. Certainly his picture was a "likeness" of Mr. Brown and it was used for the purposes of trade, namely advertising Kenneth Cole's shoes.
The New York lawyer who had been contacted by Mr. Brown's office called around to find an intellectual property lawyer who could figure out what to do. Someone in my office broadcast the problem at our common lunch hour, which I came to late. The problem was repeated to me. I checked and discovered that the statute of limitations for right to publicity claims in South Carolina was two years. We still had about two weeks to act, by suing in that state - Mr. Brown's home state -- rather than in New York where the defendants resided. My cousin, Richard Mark Gergel (now a federal judge), had a law office in South Carolina. We had worked together on a number of cases. I called him, and he readily agreed to join the case. I called Brown's lawyers and said I thought I could help them. They engaged us.
I immediately prepared a legal complaint against the Kenneth Cole shoe company, the advertising company that created the ad and the two magazines, Harpers's Bazaar and Vanity Fair, where the ads appeared. I sent it to Richard Gergel to file. After it was filed in federal court, I hired a process server to serve the necessary papers. We did so about two days before the two-year limitations period expired.
Mr. Brown wanted to meet his new lawyers. I flew to Augusta, and we met at a hotel conference room. There were about eight lawyers, accountants, business associates sitting around the table. After introductions, Mr. Brown asked everyone: "where did you go to school?" All of us had college degrees or post-graduate degrees. So we answered "Harvard" "Duke" "Georgia Tech" "Clemson." After we finished, Mr. Brown pointed to himself and said "seventh grade." So this seventh grader was rich and successful enough to hire a bunch of highly educated professionals. He later sent me a letter that read: "I thank you for being concerned about a person who was not allowed to get a formal education."
We quickly settled the case. Sometime later Mr. Brown came to New York for a concert. My wife and I went backstage before the event. Reverend Al Sharpton (who started his career working for Mr. Brown and remained a good friend) was in the dressing room. Mr. Brown introduced me: "This is my new lawyer." Sharpton said: "You did a great job for Mr. Brown."
Soon after the Kenneth Cole case was settled, a new case emerged. Foster Beer, an Australian beverage company, ran a commercial using Mr. Brown's famous song "I Feel Good." Some robots walk into a bar and ask for a beer. The robot bartender gives them some beer. The robots drink and appear dissatisfied. "Don't you have something different?" the customers say.The robot bartender gives them some bottles of Foster Beer. They drink and immediately the robots lose their metal covering and become beautiful young men and women who begin dancing with each other to the tune of "I Feel Good."
Foster had obtained copyright releases from the music publisher and the record company. But it did not get any release from Mr. Brown. We thought his voice was his "likeness." It was such a special identifying characteristic of Mr. Brown, that his right to publicity was violated. So we sued the beer company and its advertising company, who then promptly filed claims against the music publishing company and the record company for not securing the necessary releases from Mr. Brown.
Our first appearance in court was before the great South Carolina judge, Matthew Perry. Judge Perry was one of the NAACP lawyers who helped desegregate South Carolina schools in the 1950's and 1960's and had a distinguished career as a federal judge - the first black federal judge in South Carolina since Reconstruction. Representing the defendants was Richard Riley, former Governor of South Carolina and later Secretary of Education under President Clinton. He wanted the case moved to New York because all the important witnesses, except one, were from New York. Judge Perry asked, who was the one non-New York witness? "Dick Clark," Governor Riley answered. Well, Judge Perry would certainly like to have Mr. Brown and Dick Clark come to his courtroom. He denied the motion to transfer the case.
The defendants then moved for summary judgment on the grounds that they had obtained all the necessary releases. I told Mr. Brown that he should show up for the hearing at the federal court in Columbia, South Carolina. He came to the court in his long limousine. When he entered the courthouse, everyone asked for his autograph, including the judge's clerk, the court officers, potential jurors in another case. Richard Gergel told the opposing lawyer, "our jurors will also ask for his autograph after they find for us."
The defendants argued that they did not need James Brown's permission once they obtained the necessary releases from the music companies. We said that any special physical characteristic of a famous person, such as his voice, becomes his "likeness", a form of identification. We cited a case involving Bette Midler where a California court said that imitating her voice was a violation of her right to publicity. After our argument, Judge Perry announced that he thought the way in which the actors moved around in the ad imitated James Brown's dance movements as well, a point we had never argued. When the judge made those comments, Mr. Brown who was at our counsel table, stood up and pirouetted around. The entire courtroom broke up. The judge denied the defendants' motion. Once again, we quickly settled.
I had many other cases for Mr. Brown over the next sixteen years until he died in 2007. He was sued by former girl friends, former band members, even his daughters sued him, claiming to have helped him write some of his songs when they were eight years old. I negotiated the first movie contract for his life story. He insisted that Eddie Murphy not play him in the style of his famous Saturday Night Live parody. A clause to that effect was put in the contract. When I attended his concerts, he would point me out and ask the audience to applaud me.
He was always kind, pleasant, respectful to me. I miss him.
Leon Friedman is a professor of Constitutional Law at the Maurice A. Deane Law School at Hofstra University and a practicing intellectual property lawyer.