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February 18, 2016 Practice Points

Target Wins Legal Battle to Sell Rosa Parks's Books, Movies, and More

By Leonard Wills

On January 4, 2016, the U.S. Court of Appeals for the Eleventh Circuit ruled that retail chain Target could sell merchandise that used the name and likeness of Rosa Parks, the prominent civil rights figure. The U.S. Congress recognized Mrs. Parks as the "first lady of civil rights" and stated she ignited "the most significant social movement in the history of the United States." To recap: On December 1, 1955, in Montgomery, Alabama, Mrs. Parks refused to give up her bus seat to a white man. Her refusal violated the law because it required that African Americans give their seats to white people. Subsequently, the police arrested her. Her arrest served as a catalyst for the Montgomery bus boycott. The boycott lasted for 13 months and ended when the U.S. Supreme Court ruled that segregation on public buses violated the Constitution.

After her death on October 24, 2005, the Rosa and Raymond Parks Institute for Self-Development, a nonprofit entity founded by Mrs. Parks, obtained the exclusive ownership of the name and likeness of Mrs. Parks pursuant to the right of publicity. Under Michigan law, the right of publicity permits the exclusive use of an individual's name and likeness for the benefit of the individual or others. The law precludes anyone from using without consent an individual's name or likeness for commercial value.

In 2011, Target began to sell books, a movie, and a plaque that used the name and likeness of Mrs. Parks without the consent of the institute. The institute filed a complaint against Target claiming that Target violated Michigan's right of publicity because the corporation sold merchandise using the name and likeness of Mrs. Parks without consent from the Institute.

The court held that although the Institute obtained exclusive ownership of the name and likeness of Mrs. Parks, the right of publicity "yields to qualified privilege to communicate matters of public interest." As a matter of public interest, Mrs. Parks indisputably remains one of the most prominent figures in the Civil Rights Movement. The court stated "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." The court ruled that under Michigan's qualified privilege, Target can sell merchandise that preserves and recounts "the story of Rosa Parks and the Civil Rights Movement—even when that interest allegedly conflicts with an individual right of publicity."

This ruling limits the right of publicity of celebrities and other public figures, such as Mrs. Parks, over the ownership of their name and likeness. An individual or entity can without consent use the name and likeness of an individual as long as the use is not to seek commercial value but to share matters of public interest. To tell the story of world history, science, and other topics, individuals can use the name and likeness of public figures without worry of persistent legal battles. The courts, however, must protect the right of publicity of celebrities, public figures, and others, from misuse by corporations for commercial value.

Leonard Wills is with the U.S. Department of Homeland Security in Washington, D.C.

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