Rosa and Raymond Parks Institute for Self Development v. Target Corp., No. 2:13-CV-817 (M.D. Ala. Feb. 9, 2015)
The Parks Institute, a 501(c)(3) corporation, “owns the name and likeness of the late Rosa Parks,” an icon of the civil rights movement. Target sold “a collage-styled plaque” created by Stephanie Workman Marrott:
The elements of the plaque were: (1) the phrase “Civil Rights”; (2) an illustrated exhibit submitted in Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala. 1956), depicting where Rosa Parks was sitting on the bus prior to her arrest; (3) the word “Change”; (4) an illustration of the Cleveland Avenue bus; (5) Rosa Parks’s name and dates of birth and death; (6) a picture of Rosa Parks’s Congressional Gold Medal; (7) a photograph of Rosa Parks and Martin Luther King, Jr.; and (8) an inspirational statement made by Rosa Parks: “People always say that I didn’t give up my seat because I was tired, but that isn’t true. I was not tired physically. . . I was not old . . . I was forty two. No, the only tired I was, was tired of giving in.”
The Parks Institute sued over this and eight other items sold by Target: seven books about Rosa Parks using her name in the title (including, as if that weren’t incredible enough, Rosa Parks: My Story, by Rosa Parks and Jim Haskins), and the film The Rosa Parks Story, which is exactly what it sounds like (and directed by Julie Dash). (The commentary at this link suggests that the judge wrongly contracted (one says “tore down all protection for”) the right of publicity in rejecting these claims, though perhaps the authors only mean as to the plaque. My level of disagreement cannot be textually rendered.)
Anyhow, the judge applied Michigan law to the claims for infringement of the right of publicity, common-law misappropriation, and unjust enrichment, which all had the same key issues. (Note: the Parks Institute initially brought federal claims, but dismissed them, presumably to avoid any leakage of the entirely appropriate Rogers analysis that dooms any federal claims onto the state law publicity claims.)
Ruffin-Steinback v. dePasse, 82 F. Supp. 2d 723 (E.D. Mich. 2000), applied Michigan law to reject claims based on a two-night miniseries covering the story of the musical group The Temptations. The court looked to the Restatement (Third) of Unfair Competition § 46 (1995), which provides for liability for appropriating the commercial value of a person’s identity “for the purpose of trade.” The Restatement explains that the purpose of trade means advertising (or merchandising), but not “ordinarily … the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.” Comment c to § 47 specifically states that “the right of publicity is not infringed by the dissemination of an unauthorized print or broadcast biography.” Ruffin-Steinback noted that courts across various jurisdictions treat unlicensed biography similarly. Thus, the court concluded, “Michigan courts would not extend [the] right of publicity tort” to prohibit biographical works and dismissed all of the derivative claims – unjust enrichment, conspiracy, and negligence – finding that they were dependent on the plaintiffs’ right of publicity claims.
The Parks Institute challenged the sale of eight biographical works, mostly books for children “written to educate children about the Civil Rights movement and to demonstrate how one courageous individual can bring about significant change.” There’s nothing false or defamatory about them. The Parks Institute was wrong to claim that the First Amendment didn’t protect the unapproved sale of items depicting “the name, likeness, story, or image of Rosa Parks.” Parks was an iconic heroine of the civil rights movement; the parties agreed that one couldn’t talk about that movement without including Parks. “The importance of her story serves as an apt reminder of why First Amendment protection for biographical works is so vital.” Summary judgment for Target on the books and movie.
And the plaque? This was “less of a biographical work and more akin to a work of art.” (Which is why courts ought not to be in the business of judging art. Why isn’t it biographical art? Is an article depicting only key moments in Parks’ life not biographical?) Under Michigan’s invasion of privacy tort, there is a cause of acttion for misappropriation of name or likeness. However, because “the tort has the potential to offer a troublingly broad swath of protection,” courts uniformly impose the First Amendment as a barrier to liability for the use of name or likeness in publications concerning matters that are “newsworthy or of legitimate public concern.”
Newsworthiness/public concern is ordinarily a question of law. The difference is between “predominately commercial purpose” versus “a redeeming public interest, news, or historical value.” Target’s sale of the plaque “served a commercial purpose,” but even profit-seeking endeavors can have a legitimate public interest privilege. For example, a fundraising letter may use quotes from a person without their consent when the quotes speak to important policy issues.
Plus, reference to current events isn’t required, because “matters related to education and information are . . . within the scope of legitimate concern.” The Restatement (Second) of Torts says that the privilege extends to “giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published.” Armstrong v. Eagle Rock Entm’t, Inc., 655 F. Supp. 2d 779 (E.D. Mich. 2009), applying Michigan law, held that the First Amendment privilege includes “‘all types of factual, educational, and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general.’” Armstrong held that a picture of Louis Armstrong on the cover of a DVD depicting a historical jazz concert was protected by the First Amendment. “Michigan law and the First Amendment require a similar determination in this case.”
The plaque contained “several elements reminiscent of the historic Civil Rights movement.” The plaque’s creator stated that she sought to inspire viewers to “stand[ ] up for what [they] believe is right” while telling the important story of Rosa Parks’s courage during the Civil Rights movement. “There can be no doubt that Rosa Parks and her involvement in the Civil Rights movement are matters of utmost importance, both historically and educationally.” Thus, the use of her name and image was historically significant and protected by the First Amendment, entitling Target to summary judgment.