IP Law Daily Target’s sale of items bearing Rosa Parks’s likeness was constitutionally protected
Tuesday, January 5, 2016

Target’s sale of items bearing Rosa Parks’s likeness was constitutionally protected

By Thomas Long, J.D.

Retailer Target Corporation did not violate publicity rights held by the Rosa and Raymond Parks Institute for Self Development (the “Parks Institute”) by selling items bearing the likeness of the late civil rights activist Rosa Parks, the U.S. Court of Appeals in Atlanta has held (Rosa and Raymond Parks Institute for Self Development v. Target Corporation, January 4, 2016, Rosenbaum, R.). Because the items sold concerned matters of public interest, and the use of Rosa Parks’s name and likeness was necessary to chronicle and discuss those matters, Target’s activities were constitutionally protected.

The Michigan-based Parks Institute owned the rights to the name and likeness of the late Rosa Parks, an African-American woman who became an icon of the Civil Rights Movement when she refused to surrender her seat to a white passenger on a racially segregated Montgomery, Alabama, bus. Target offered for sale several books about Parks; the made-for-TV movie, The Rosa Parks Story; and a collage-styled plaque that included, among other things, a photograph of Parks alongside Dr. Martin Luther King, Jr. The plaque bore the title “Civil Rights,” a statement of the years Parks lived, the word “CHANGE,” and a photo and diagram of the bus in Montgomery on which Parks was sitting prior to her arrest. Overlaid on the photo of Parks and King was an inspirational statement made by Parks.

On November 6, 2013, the Parks Institute filed suit against Target in the Middle District of Alabama, alleging, among other claims, violation of Michigan’s common-law right of publicity. Target moved for summary judgment on free-speech grounds; the district court granted the motion. The Parks Institute appealed.

Michigan’s common-law right of publicity was a privacy right, founded on the interest of the individual in the exclusive commercial use or his or her own identity. The right was not absolute, the court noted. The Michigan Constitution guaranteed free speech rights, and the right of publicity was limited by a qualified privilege to communicate on matters of public interest.

It was beyond dispute that Rosa Parks was a figure of great historical significance and that the Civil Rights Movement was a matter of legitimate and important public interest, the court said. Additionally, it was uncontested that five of the six books at issue—including an autobiography co-authored by Parks—and the movie were bona fide works of non-fiction discussing Parks and her role in the Civil Rights Movement. The sixth book—Rosa Parks: Childhood of Famous Americans—was a fictionalized biography meant to introduce children to the important of Parks; it, too, concerned a matter of public interest. The plaque depicted images and mentioned dates and statements related to Parks and the Civil Rights Movement, in an effort to convey a message about Parks’s courage and the results of her strength. In the court’s view, all of the items challenged by the Parks Institute communicated information and expressed views regarding a movement that continued to be of the highest public interest and concern.

The Parks Institute did not articulate any argument as to why Michigan’s qualified privilege for matters of public concern would not apply to the items sold by Target, the court said. The use of Rosa Parks’s name and likeness in the items was necessary to chronicle and discuss the history of the Civil Rights Movement. Discussion of such matters was not contingent on paying a fee. Therefore, all of the items were protected by the qualified privilege, and the district court did not err in granting summary judgment in favor of Target.

The case is No. 15-10880.

Attorneys: Gwendolyn Thomas Kennedy (Kennedy Law Group, LLC) for Rosa and Raymond Parks Institute for Self Development. James R. Steffen (Faegre Baker Daniels, LLP) and Helen Kathryn Downs (Butler Snow, LLP) for Target Corporation.

Companies: Rosa and Raymond Parks Institute for Self Development; Target Corporation

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