Tuesday, January 05, 2016

Plaque buildup: Rosa Parks foundation loses publicity case

Rosa & Raymond Parks Institute for Self Development v. Target Corp., No. 15-10880 (11th Cir. Jan. 4, 2016)
[Long description of Rosa Parks’ role in the Montgomery Bus Boycott and iconic status for the civil rights movement omitted, as well as details about the targeted biographies—the critical praise for them, their educational value for children, the star status of those who starred in the biopic, etc.]  The striking features of this case: (1) Somebody thought it made sense to sue Target for violating the right of publicity by selling biographical books, movies, and a plaque with an inspirational quote on it.  (2) There is simply no analysis of the proper boundaries of the right of publicity, because how could there be?  All we know is that Michigan common law, guided by the Michigan Constitution (interpreted in pari materia with the First Amendment for these purposes), grants a qualified privilege to speech about matters of public interest, and Rosa Parks is of public interest.
The only work that merits detailed description, because books and movies are just different, is a “collage-styled plaque that included, among other items, a picture of Parks, alongside Dr. Martin Luther King, Jr.”  The plaque’s title was “Civil Rights.” Besides Parks’s photograph and a statement of the years that she lived, the plaque included the word, “CHANGE”; a photograph and diagram of the bus where Parks “threw down the Civil Rights Movement gauntlet”; and a picture of Parks’ later-awarded Congressional Gold Medal.  The statement, “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,” was overlaid over the picture of Parks and Dr. King. 
The court explains that a “professional artist,” Stephanie Workman Marrott, designed the plaque to “tell[] a story about civil rights in America . . . [to] describe important aspects of American history and convey a message about those events.” She stated that her decision to “include[] the name and image of Rosa Parks, as well as an image of the Montgomery bus and the word ‘CHANGE,’ was in order to tell the story of Rosa Parks and the civil rights movement in a way that would convey an inspirational message about standing up for what you believe is right and what you believe in.”
The biographies were all “bona fide works of non-fiction discussing Parks and her role in the Civil Rights Movement,” and there was also a fictionalized biography “meant to introduce children to the importance of Parks,” also concerning a matter of public interest. Likewise, the plaque contained images, dates, and statements “related to Parks and the Civil Rights Movement, in an effort to convey a message concerning Parks, her courage, and the results of her strength.”

Plaintiff didn’t make any argument about why the qualified privilege wouldn’t apply to these works:
The use of Rosa Parks’s name and likeness in the books, movie, and plaque is necessary to chronicling and discussing the history of the Civil Rights Movement—matters quintessentially embraced and protected by Michigan’s qualified privilege. Indeed, it is difficult to conceive of a discussion of the Civil Rights Movement without reference to Parks and her role in it. And Michigan law does not make discussion of these topics of public concern contingent on paying a fee.
We need a federal anti-SLAPP law and a Supreme Court ruling on the right of publicity to guard against these claims, which are only ridiculous because lower courts continue to discriminate against video games.

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