Michigan’s public interest privilege trumps Rosa Parks’ right of publicity claim

By Marie-Andrée Weiss

The Eleventh Circuit held on January 6, 2016, that Target did not infringe Michigan’s right of publicity law when selling books, a movie, and a plaque which used Rosa Parks’ name and likeness. The case is Rosa and Raymond Parks Institute for Self-Development v. Target Corporation.

Rosa Parks is a revered figure of the Civil Rights Movement. She courageously refused to give up her seat on the bus to a white rider at a time when segregation was still enforced in her city of Montgomery, Alabama, leading to her arrest, and the Montgomery Bus Boycott. This protest led to the Supreme Court finding that the Montgomery segregation law was unconstitutional.

Rosa Parks was awarded the Congressional gold medal in 1999. When she died in 2005, her body laid in state in the Capitol to allow thousands of people to pay their respects. There is no doubt that Rosa Parks is an American icon.

It is therefore not surprising that, in 2011, Target chose to sell seven different books, some for adults, some for children, and one movie about Rosa Park, online and in some of its 1,800 stores, along with a plaque, designed by professional artist Stephanie Workman Marrott.

The plaque featured, in a collage-like arrangement, the title “Civil Rights,” a picture of Rosa Parks with Dr. Martin Luther King, Jr., Rosa Parks’ name, her year of birth and year of death, a picture of the bus she made famous, an image of her congressional medal, the word “CHANGE” and a Rosa Parks  quote explaining why she had refused that day to give up her place on the bus: she was “tired of giving in.” Ms. Marrott testified that she wanted to “convey an inspirational message about standing up for what you believe is right and what you believe in.”

The Rosa and Raymond Parks Institute for Self-Development (the Institute) is a Michigan non-profit which has been assigned Rosa Parks’ right of publicity, and thus owns the right to her name and likeness. It filed a complaint against Target in November 2013 in the United States District Court for the Middle District of Alabama, claiming that Target had infringed Rosa Park’s right of publicity by selling the books, the movie, and the plaque. Target moved for summary judgment, claiming the items sold where protected by the First Amendment as biographical works of public interest. The District Court dismissed the complaint. The Institute appealed, but the Eleventh Circuit affirmed.

The Eleventh Circuit, siting in diversity, applied Michigan’s right of publicity law to the case, as the injury occurred in that state. Michigan’s common-law right of privacy protects against appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. This right is given to anybody, whether famous or not. The District Court had extensively cited Ruffin-Steinback v. DePasse, where the Eastern District of Michigan held that Michigan’s right of publicity does not extend to cases where defendant has depicted someone’s life-story without his or her permission.

In Ruffin, the Eastern District of Michigan had quoted the Restatement (Third) of Unfair Competition § 47 (1995), in which comment c explains that “[t]he use of a celebrity’s name or photograph as part of an article published in a fan magazine or in a feature story broadcast on an entertainment program, for example, will not infringe the celebrity’s right of publicity.”

The Eleventh Circuit did not take that route and instead concluded that Michigan’s right of publicity is not absolute because Michigan’s Constitution guarantees that “[e]very person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.” This has allowed Michigan courts to recognize a qualified privilege to communicate on matters of public interest as a defense in defamation suits. This right is broad as it “extends to all communications made bona fide upon any subject-matter“ if the party communicating has an interest or a duty to a person having a corresponding interest or duty, even if this duty “is not a legal one, but where it is of a moral or social character of imperfect obligation” Bacon v. Mich. Cent. R. Co., 33 N.W. 181, 183 (Mich. 1887).

The Eleventh Circuit noted that “Michigan courts and courts applying Michigan law have found the qualified privilege to extend to issues concerning even general topics of public concern” and that “it is beyond dispute that Rosa Parks is a figure of great historical significance and the Civil Rights Movement a matter of legitimate and important public interest” (p. 13). The books and movie sold by Target discussed Rosa Parks’ role in the Civil Rights Movements, and the plaque was designed so as “to convey a message concerning Parks, her courage, and the results of her strength” (p. 13). All of these items are of important public interest.

The Eleventh Circuit found that even though Michigan’s qualified privilege “is not invincible,” the Institute had not argued why the Michigan public interest privilege would not apply to the items sold by Target, “in light of the conspicuous historical importance of Rosa Parks. Nor can [the Eleventh Circuit] conceive of any.” The court reasoned that it is necessary to use Rosa Parks’ name and likeness to discuss the Civil Rights Movements and that it would be “difficult to conceive of a discussion of the Civil Rights Movement without reference to Parks and her role in it.” As a result, the books, movie and plaque are protected by Michigan’s public interest privilege (p. 14).

Interestingly, the Alabama District Court had analyzed the legality of the plaque separately from the books and the movie, because it was “less of a biographical work and more akin to a work of art” (p. 13, Alabama). It found that the plaque was protected by the First Amendment, quoting Battaglieri v. Mackinac Ctr. for Pub. Policy, where the Court of Appeals for Michigan held that “the First Amendment bars appropriation liability for the use of a name or likeness in a publication that concerns matters that are newsworthy or of legitimate public concern.”

Regardless of which law protects the right to use, even in commerce, the name and likeness of a person of great public interest, the outcome of this case is welcome, as ruling in favor of plaintiff would have given a single entity control over the use of the name and likeness of an American icon. It would have been a great loss for the public.

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