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The First Amendment, Target, and Rosa Parks
by Stites & Harbison, PLLC
If you were following two weeks ago, you recall my recap of the Board's decision to refuse registration to "PRINCESS KATE" and "ROYAL KATE" on the grounds that potential consumers would think of Kate Middleton (actually a Duchess) when they saw the marks i.e. Kate Middleton has the right to control the right of publicity and to control the commercialization of her identity. While a famous person generally has to right to control the commercialization of his or her identity, a decision by the U.S. District Court in Alabama on February 9 in Rosa and Raymond Parks Institute for Self Development v. Target Corporation shows that such control is limited.
We all know Rosa Parks, an African-American woman who became, in the words of the Court, "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. Her actions ignited the Montgomery Bus Boycott."
She is even featured on a U.S. postage stamp:
We also all know Target Corporation, a national retail corporation which operates more 1800 retail stores across the U.S. along with an e-commerce web site:
Target was selling a plaque in its stores which included material relating to the Cleveland Avenue bus in which Rosa Parks refused to give up her seat, a photograph of Rosa Parks together with Martin Luther King, Jr., an inspirational statement by Rosa Parks, and other text. Target was also selling various books about the life story of Rosa Parks and a movie, The Rosa Parks Story.
The Rosa and Raymond Parks Institute for Self Development ("Parks Institute"), a non-profit which owns the name and likeness of Rosa Parks, alleged that Target was using the name and likeness of Rosa Parks for its "own commercial advantage" in violation of state laws against violation of the right of publicity, misappropriation, and unjust enrichment. Target moved for summary judgment on the grounds that the plaque and biographical works it was selling were protected by the First Amendment of the Constitution. There were, of course, no issues of fact as to whether Target was selling these products, and the question of law presented was whether the sales were protected by the First Amendment.
Most Americans are familiar with the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
The First Amendment will protect the unauthorized use of a person's name and likeness if the use has a redeeming public interest, news, or historical value, and, with respect to the biographical materials, the Court found that "as both parties agree, one cannot talk about the Civil Rights movement without including Rosa Parks. The importance of her story serves as an apt reminder of why First Amendment protection for biographical works is so vital." There isn't much question but that people should have the right to write about the important historic figure Rosa Parks without being concerned with obtaining authorization.
However, the Court looked at the plaque separately because it was not so much a biographical work as a "work of art." The Court noted that "[t]he collage-styled plaque contains several elements reminiscent of the historic Civil Rights movement" and stated that "by including a picture of Rosa Parks and Martin Luther King, Jr. alongside stylized renderings of the words 'Civil Rights' and 'Change'" the plaque's creator sought to inspire viewers to stand up for what they believe is right "while telling the important story of Rosa Parks's courage during the Civil Rights movement." Finding that "[t]here can be no doubt that Rosa Parks and her involvement in the Civil Rights movement are matters of utmost importance, both historically and educationally," the Court found that the plaque also was protected by the First Amendment.
The plaque, unlike the books and movie of the Rosa Parks life story, is closer to the line at which commercial exploitation is not balanced by a redeeming public interest. What would happen if Target were selling cups or figurines with the name and likeness and similar messages?
The idea of commenting on Rosa Parks isn't new. Remember the OutKast song Rosa Parks? It's just so catchy:
This song even spurred litigation. A lawsuit filed in March 1999 on behalf of Ms. Parks against OutKast and LaFace Records, alleging that OutKast had illegally used Rosa Parks' name without her permission for the song. Stay tuned for more on that.
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