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The Publicity Right of Rosa Parks Stops at the "Public Interest" Station

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

plaque.jpg 

-Target's Rosa Park Plaque-

Personal Image Protection: What better way for the Image Protection blawg to celebrate Martin Luther King Day than to have a brand new and significant right of publicity case involving the life of Rosa Parks? As any student of history knows, the icon of the Civil Rights Movement refused to give up her seat on the bus to a white man as the local law required, setting in motion a cascade of events for the Civil Rights Movement. In an opinion on January 4, 2016, the Eleventh Circuit Court of Appeals confirmed that such historical figures or their estates cannot prevent others from profiting from selling media or products primarily composed of content disseminating information on matters of public interest or concern.

In this case Target sought to advance awareness of Parks - and no doubt profit from it - by offering for sale in its stores a series of books, a documentary film, and a plaque all focused on the life of Rosa Parks. The Rosa Parks Foundation, the owner of her post-mortem right of publicity, sued and claimed it had not consented to the commercial exploitation of her name and biographical information.

As a practical matter, the most relevant claim was the plaque, i.e., whether it was mere merchandise (e.g., an objet, a wall ornament, or functionally not much more than a paperweight), or whether it was a medium for imparting information of public interest concerning Rosa Parks and the events surrounding her life. After all, books and movies are obvious "expressive" works that have traditionally enjoyed the broadest First Amendment protection from such claims. In this case the federal circuit appeals court decided the case on the Michigan state qualified privilege concerning reporting on matters of public interest. Having decided it on state law, it did not need to decide how much broader, if at all, First Amendment protection was that would have caused the court to reach the same conclusion.

The court had no difficulty finding that the plaque was just as much an expressive work enjoying the same broad immunity as books and movies. The court: "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."

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