The Volokh Conspiracy
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The U.S. Court of Appeals for the 11th Circuit just handed down an interesting and important right-of-publicity decision, in Rosa & Raymond Parks Institute for Self Development v. Target Corp. In the process, the court announced yet another test for right-of-publicity cases, alongside the many others adopted by other courts—one might call it the "public interest" test.
1. First, the background, from the decision:
Target offered seven books about [Rosa] Parks for retail …. Target also sold the American television movie, The Rosa Parks Story, and a collage-styled plaque that included, among other items, a picture of Parks, alongside Dr. Martin Luther King, Jr.
The plaque was emblazoned with the title, "Civil Rights." Besides Parks's photograph and a statement of the years that she lived, the plaque included the word, "CHANGE," and it contained a photograph and diagram of the bus where Parks threw down the Civil Rights Movement gauntlet, as well as a picture of the Congressional Gold Medal that Parks was later awarded. Overlaid on the photograph of Parks and Dr. King was 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."
Stephanie Workman Marrott, the professional artist who designed the plaque, explained that she created it to "tell a story about civil rights in America … [to] describe important aspects of American history and convey a message about those events." She added 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."
2. Now, the plaintiff's legal claim: Michigan law recognizes the so-called "right of publicity" (historically a branch of the right of privacy) that "guards against the appropriation of 'the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purpose of trade.'" The Raymond and Rosa Parks Institute, which owns Parks' rights, sued Target for selling both the biographies and the plaque. (Michigan law applied because Parks lived in Michigan at the time she died; that's the so-called "choice of law" rule for right-of-publicity cases.)
3. Of course, not all commercial uses of a person's identity are legally actionable. Newspapers, for instance, are entitled to mention people's names and likenesses in their coverage. All courts that have considered the matter have held the same as to biography.
Yet as I mentioned in this post earlier today, different courts have come up with different approaches for deciding which other uses are actionable, and which are protected from lawsuits. Now the 11th Circuit has come up with yet another approach, borrowing the "public interest privilege" from defamation cases (and other cases, including disclosure of private facts cases) into the right of publicity:
Michigan courts have long recognized that individual rights must yield to the qualified privilege to communicate on matters of public interest. … The privilege attaches to matters of general public interest, and "extends to all communications made bona fide upon any subject-matter" where the party communicating has an interest or a [legal, moral, or social] duty to a person having a corresponding interest or duty.
The court stated that, "The privilege afforded is not a constant but varies with the situation and the importance of the social issues at stake." And the civil rights movement, the court concluded, is an important enough issue to justify applying the privilege:
In cases concerning social issues, Michigan courts and courts applying Michigan law have found the qualified privilege to extend to issues concerning even general topics of public concern [such as matters of healthcare, the administration of justice, the broadcast of an historical documentary, the closing of the only dinner theater in Western Michigan, and liquor-license application as a matter of public function]. …
Rosa Parks is a figure of great historical significance and the Civil Rights Movement [is] a matter of legitimate and important public interest. And it is uncontested that five of the six books, including an autobiographical book co-authored by Parks herself, and the movie are all bona fide works of non-fiction discussing Parks and her role in the Civil Rights Movement. As for the sixth book, Rosa Parks: Childhood of Famous Americans, by Kathleen Kudlinski, it is a fictionalized biography meant to introduce children to the importance of Parks, so it, too, concerns a matter of public interest.
Similarly, the plaque depicts images and mentions 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. Indeed, all of the works in question "communicate information, express opinion[s], recite grievances, [and] protest claimed abuses, … on behalf of a movement whose existence and objectives" continue to be "of the highest public interest and concern."
Although the qualified privilege is not invincible, the [Parks] Institute has not articulated any argument as to why Michigan's qualified privilege for matters of public concern would not apply to these works, in light of the conspicuous historical importance of Rosa Parks. Nor can we conceive of any.
The use of Rosa Parks's name and likeness in the books, movie, and plaque are 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. As a result, all six books, the movie, and the plaque find protection in Michigan's qualified privilege protecting matters of public interest.
4. I think this is the right result, and it may well yield a very broad privilege to use another's name or likeness (which I think is right). Though the court repeatedly stresses just how important the civil rights movement is, I think courts will realize that it's hard to draw a legally significant line between super-important historical events and only mildly important ones.
And the court approvingly cited cases about, among other things, the financial background for "the closing of the only dinner theater in Western Michigan." That sets a fairly low bar for what is a "matter of public interest."
On the other hand, deciding what is and isn't a matter of public concern has long been difficult, and courts have reached some odd and contradictory results applying such tests (see pp. 783-88 of this article). Such a distinction might make sense when it comes to deciding the required mental states for libel liability related to false factual assertions. But I'm not sure that it's sound when it comes to accurate use of people's names or likenesses.
More broadly, how would this approach play out as to many of the right-of-publicity controversies in the news—such as with the names and likenesses of famous sports figures or entertainers? Consider, for instance, paintings depicting Tiger Woods, prints depicting the Three Stooges, greeting cards with jokes referring to Paris Hilton, fantasy baseball games that refer to baseball players, football video games that refer to football players; courts have split on whether the celebrity can successfully sue in such cases (Hilton, the Three Stooges' heirs and the football players won, while Woods and the baseball players lost).
Sports and entertainment are surely "matters of public interest," more so than the closure of dinner theaters, so I think that speakers should prevail under a fair reading of the 11th Circuit's new test. But will they? Hard to tell for certain, especially given the 11th Circuit's statement that "The privilege afforded is not a constant but varies with the situation and the importance of the social issues at stake" and the possibility that some courts will view "mere entertainment" as less "importan[t]" than other matters.
5. Finally, though the 11th Circuit's opinion focuses on Michigan law, it should be influential in other states and circuits, too. The court repeatedly cites the Restatements of Torts and Unfair Competition, noting that Michigan courts follow them. The Restatements are influential summaries of the law, prepared by the American Law Institute (an organization of lawyers, judges and law professors), and many state courts follow the Restatements.
Moreover, the court's opinion has a free speech dimension as well. The court notes that Michigan courts have recognized that various speech torts are limited by the Michigan Constitution, which says "[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." And the court adds that "[t]he protection derived from this provision of the Michigan Constitution provides the necessary shield for the works at issue and we need not address whether the First Amendment would also serve to protect the works."
But the court also notes that "Michigan courts have been clear that '[t]he rights to free speech under the Michigan and federal constitutions are coterminous … [and t]hus, federal authority construing the First Amendment may be used in construing the Michigan Constitution's free speech guarantee.'" Thus, the court's reasoning on free speech rights would be persuasive authority as to free speech under the First Amendment, even in other states. Moreover, many states have free speech/press constitutional provisions similar to Michigan's (and, as I noted, many states follow the Restatements in tort cases, as well as generally paying attention to out-of-state tort law precedents).
(Note, by the way, that this case, like the others I've discussed, involves uses other than commercial advertising of ordinary products. The law for such commercial advertisements is much more plaintiff-friendly, unless the commercial advertisement is for something that is itself fully protected speech, such as an ad for a biography or a newspaper.)
Disclosure: My students Daniel Korda, Sabrina Ly and Samuel Sadeghi and I filed a friend-of-the-court brief on behalf of 24 law professors in the case, through the Scott & Cyan Banister First Amendment Clinic here at UCLA.