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Target Can Use Rosa Parks' Name and Image for Sales, 11th Cir. Rules

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By Jonathan R. Tung, Esq. on January 07, 2016 5:59 AM

The name Rosa Parks evokes powerful imagery of the fight for Civil Rights in this country. Now, when people think of Rosa Parks, they will also be reminded of this appropriation lawsuits in the Eleventh Circuit.

The circuit court ruled in favor of Target, who sought to sell civil rights themed merchandise in its stores featuring Parks' likeness, much to the chagrin of the institute founded by Parks (The Rosa and Raymond Parks Institute for Self Development aka "RRPI) that sought to enjoin such sales.

Commercial Art v. Publicity Rights

Rosa Parks, whose name became synonymous with the 50's Civil Rights Movement, established an institute in her and late husband's name to protect her namesake. Though she was championed as the face of civil rights, her legacy has been tarnished by less than idyllic legal battles that wrangle over the particularities and nuances of the commercial use of her name and likeness.

This week, the Eleventh Circuit affirmed a dismissal by a lower Federal Court in favor of Target. Target had been sued by RRPI for selling merchandise that violated her namesake and likeness, including the film The Rosa Parks Story which had previously aired on CBS. The suit rested on Michigan's statutory codification of the common law appropriation tort, which makes it unlawful to sell someone's likeness without first obtaining their permission (or the other entity holding the right).

Sale of Target Goods = Free Speech

The reasoning of the circuit court was this: appropriation is all well and good, but the law was not a hammer to strike down any appropriation of a celebrity. In fact, The circuit found, courts have long recognized that a right to "communicate" on matters of public interest.

Since the history of civil rights fits pretty squarely into matters of public interest, Rosa Parks, it seems, gets yanked in with the ride. "Indeed," wrote the circuit, "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 irony is that both litigants know that Parks' name is tantamount to civil rights. It's just that neither want the other to have full and exclusive use of it.

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