Eleventh Circuit Decides Use of Rosa Parks’s Name and Likeness is a Matter of Public Interest Under Michigan Law

In Rosa and Raymond Parks Institute for Self Development v. Target Corp., No. 15-10880, 2016 WL 25495 (11th Cir. Jan. 4, 2016), the Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of the defendant.

The Rosa and Raymond Parks Institute for Self Development (the “Institute”) is a Michigan non-profit organization that owns the name and likeness of Rosa Parks. It brought an action in diversity against Target Corporation in the Middle District of Alabama for unjust enrichment, right of publicity, and misappropriation under Michigan common law for Target’s sale of items using the name and likeness of Rosa Parks. The Institute claimed that Target sold several books, a movie, and a plaque bearing Rosa Parks’s name and likeness “for [Target’s] own commercial advantage” unfairly and without the Institute’s prior knowledge or consent. Id. at *3.

On appeal, the Eleventh Circuit applied Alabama’s procedural law and Michigan’s substantive law in accordance with Alabama’s choice-of-law rules. The court only analyzed the Institute’s right of publicity claim because the district court held that the claims of misappropriation and unjust enrichment were derivative of the right of publicity claim and therefore resolved by the court’s finding on the right of publicity claim.

In analyzing the right of publicity claim, the court examined Michigan’s common law right of privacy which protects, among other types of invasions of privacy, the “[a]ppropriation for the defendant’s advantage, of the plaintiff’s name or likeness.” Id. (quoting Tobin v. Michigan Civil Service Commission, 331 N.W.2d 184, 189 (Mich. 1982)). That category of invasion of privacy is commonly referred to as the right of publicity. In Michigan, privacy rights are not absolute. The Eleventh Circuit found settled jurisprudence in Michigan recognizing a qualified privilege to communicate on matters of public interest. The court also relied on Michigan jurisprudence holding that public interest applies to legal, moral, and social duties. The Eleventh Circuit implicitly decided the use of Rosa Parks’s name and image to communicate information about her and the Civil Rights Movement in general fell under a duty of social character.

The Eleventh Circuit used examples from Michigan courts finding that certain social issues qualified under the privilege to determine that the use of Rosa Parks’s name and likeness, both on its own and as it chronicled the Civil Rights Movement, was a matter of high public interest. The Institute did not articulate any reason why the qualified privilege would not apply in this case and therefore did not overcome the privilege applied to Target’s actions.

In finding that “Michigan law does not make discussion of these topics of public concern contingent on paying a fee,” the court held that Target’s use of Rosa Parks’s name and likeness was protected under Michigan’s qualified privilege protecting matters of public interest and affirmed the district court’s order dismissing the Institute’s claim. Target Corp., 2016 WL 25495, at *5.

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