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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