The Eleventh Circuit Allows Use of Rosa Parks’ Name and Image on Merchandise
January 5, 2016
Today, the Eleventh Circuit rejected a lawsuit by the Rosa Parks Institute—which owns the rights to the deceased Park’s name and likeness. The case involved the Target retail chain’s selling of books, and a movie about Rosa Parks, as well as a commemorative plaque that contained her and Martin Luther King’s images, an inspirational quote from Parks, along with the words “Civil Rights.” (An image of the plaque created by Stephanie Workman Marrott is pictured above.) I signed on to an amicus brief that argued that the uses were protected by the First Amendment.
The case was decided under Michigan law, even though it was filed in Alabama, because that was the state in which Parks died. The Eleventh Circuit held that Michigan recognizes a right to privacy and the appropriation branch of that tort. It also held that this misappropriation tort is synonymous with a right of publicity.
The Eleventh Circuit focused on Michigan law and the state’s protection of free speech under its own constitution, as opposed to the U.S. Constitution and the First Amendment. Michigan, like most states, recognizes a public interest exception to privacy torts. Given the profound importance of Rosa Parks to the civil rights movement, the court held that the use of Park’s name and image were clearly in the public interest and that this interest outweighed the Institute’s interest in controlling and profiting from such uses.
According to the court, the qualified privilege for uses in the public interest “is not constant but varies with the situation and the importance of the social issues at stake.” It is difficult to predict how this public interest test would play out in other cases involving less famous and important…and/or living individuals, or merchandise that is less transformative and artistic in nature. Eugene Volokh who drafted the law professors' amicus brief, along with his clinic students, expressed similar concerns about the workability of such a public interest approach after the decision.
Although the court did not apply any of the dominant First Amendment tests, such as a transformativeness test, a predominant use test, or a relatedness test, it emphasized both the transformative and artistic features of the commemorative plaque, as well as the necessity of using both Rosa Parks’ name, likeness, and a quote from her to convey the intended artistic and political message.
The case suggests that not all merchandise is created equal. Merchandise is not commercial speech, even though it is often disfavored in right of publicity cases. The court here emphasized that this was a work of art by a “professional artist” and was not specifically identified with Target in any way other than being sold at Target stores. The First Amendment does not treat noncommercial speech differently simply because it appears on plaques or t-shirts or mugs. Yet, courts often do exactly this in right of publicity cases. This time the court got it right – and protected the use of Park’s name and likeness even though they appeared on mass-produced plaques. I am doubtful that other courts will follow the Eleventh Circuit’s lead on this issue, and I suspect that even the Eleventh Circuit is likely to be less solicitous of other uses of public figures on plaques. Imagine the Patriot’s quarterback Tom Brady’s image on a similar plaque that encouraged Perseverance, Competition and Fitness. I would wager a different outcome would result. But, the public interest standard does not help us to distinguish these cases.
A related issue that this case raises is whether it is a good idea to have post-mortem rights of publicity in the first place. Rosa Parks died in 2005 and cannot personally suffer any dignitary harm from the use of her identity. As I have written, in The Inalienable Right of Publicity, I am not convinced that property rights in a deceased personality should extend beyond death. To the extent that they do, such rights should be restricted to a limited time period after death largely to protect the dignitary interests of the heirs. This case is a perfect example of why this should be true. Rosa Parks is a leading civil rights hero who belongs to our collective history. No one should own the right to celebrate her or be able to exclude others from telling the story of her participation in the civil rights movement, whether in words or visually. Yet, this is exactly what estates are doing today. Martin Luther King Jr.’s estate charges for the use of his “I Have a Dream” speech and the U.S. government paid $800,000 to use his image and name on the memorial statue of him in Washington D.C. No one should be able to lock up our history in this way. As the Eleventh Circuit aptly notes “[t]he use of Rosa Park’s name and likeness in the books, movie, and plaque is necessary to chronicling and discussing the history of the Civil Rights Movement . . . . 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.”
As a side note, it’s not clear that the state of Michigan recognizes a post-mortem right of publicity. To date the Supreme Court of Michigan has not endorsed a separate right of publicity, nor the descendibility of such a right; however, a couple of lower courts in Michigan have. (For more information about Michigan right of publicity laws see this website’s page on the state.)