Why it matters: On January 4, 2016, the Eleventh Circuit in Rosa and Raymond Parks Institute for Self Development v. Target Corporation held that, under Michigan common law, an individual's right of publicity can be outweighed by a "qualified privilege" protecting matters of public interest. Thus, in this case, the Court found that the public's interest in merchandise bearing the name and likeness of civil rights icon Rosa Parks outweighed the right of publicity claims brought by the institute that owns her name and likeness rights.

Detailed discussion: On January 4, 2016, the Eleventh Circuit in Rosa and Raymond Parks Institute for Self Development v. Target Corporationaffirmed a lower court ruling granting summary judgment in favor of national retailer Target Corporation (Target) in a right of publicity lawsuit brought by the Rosa and Raymond Parks Institute for Self Development (Institute). A brief summary of the facts: The Institute is a Michigan 501(c)(3) nonprofit corporation that owns the name and likeness of the late Rosa Parks (Parks) through a right-of-publicity assignment. In 2011, Target began selling several books about Parks as well as the DVD of the television movie made about her life starring Angela Bassett. In addition, Target began selling a "collage-style" commemorative plaque bearing Parks' likeness. The facts show that Target was merely offering this merchandise for sale and that there was no indication that it was affiliated with Target in any way. In 2013, the Institute filed a complaint against Target in the Middle District of Alabama alleging unjust enrichment, right of publicity and misappropriation claims under Michigan common law. In particular, the complaint alleged that Target had unfairly, and "without [the Institute's] prior knowledge, or consent, used [Parks'] name, likeness, and image to sell products and did promote and sell products using [Parks'] name, likeness, and image for [Target's] own commercial advantage." The district court granted summary judgment in favor of Target, and the Eleventh Circuit affirmed on appeal.

The Eleventh Circuit began its analysis by reviewing the applicable Michigan common law on right of publicity, explaining that "[a]ppropriation for the defendant's advantage, of the plaintiff's name or likeness" is one of the four prongs that Michigan's common law right of privacy protects against. The Court pointed out, however, that this right of publicity is "not absolute" and that the Michigan constitution recognizes the right to free speech. The Court noted that, based on this state constitutional right, "Michigan courts have long recognized that individual rights must yield to the qualified privilege to communicate on matters of public interest," which privilege "is not a constant but varies with the situation and the importance of the social issues at stake."

With this precedent in mind, the Court stated that "[o]f course, it is beyond dispute that Rosa Parks is a figure of great historical significance and the Civil Rights Movement a matter of legitimate and important public interest." Moreover, "the 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 Court concluded that "[t]he use of Rosa Parks's name and likeness in the books, movie, and plaque is 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."

Click here to read the Eleventh Circuit's 1/4/16 opinion in Rosa and Raymond Parks Institute for Self Development v. Target Corporation.