“insert Court Approved Title Here”: Rosa Parks v. Laface Records
| Publication year | 2003 |
Ah ha, hush that fuss
Everybody move to the back of the bus
Do you wanna bump slump with us
We the type of people make the club get crunk1
In September 1998, the Atlanta-based musical group OutKast2 released a song titled Rosa Parks which contained the above lyrics in the chorus. In Parks v. LaFace Records, the Court of Appeals for the Sixth Circuit recently found itself in the precarious position of deciphering those cryptic lyrics.3 To accomplish this task the court actually relied on a translation of the lyrics "derived from various electronic 'dictionaries' of the 'rap' vernacular."4 The chorus was translated to mean:
Be quiet and stop the commotion. OutKast is back out [with new music] so all other MCs [mic checkers, rappers, Master of Ceremonies] step aside. Do you want to ride and hang out with us? OutKast is the type of group to make the clubs get hyped-up/excited.5
At stake in the case was Rosa Parks' right to protect her celebrated name and OutKast's right to use her name as the title to its song;6 but in a larger sense, the expressive rights of all artists were at stake. The First Amendment of the United States Constitution7 protects this artistic expression, and the judicial system should act to enforce this right of artistic freedom.8 However, the outcome of this case and other recent legislation show that the judicial system is not only failing to enforce this right, but is stifling artistic expression.
I. Background
Rosa Parks is the well-known historical figure who gained distinction during the civil rights movement of the 1950s and 1960s.9 Parks' refusal to give her seat on a bus to a white passenger ultimately sparked organized boycotts, sit-ins, and demonstrations and led to court rulings desegregating public transportation nationwide.10 The "hook" or chorus of OutKast's song titled Rosa Parks contains the lyrics "[e]verybody move to the back of the bus."11 The song is about the entertainment industry and its lyrics do not refer to the plaintiff by name.12 Parks originally brought suit against LaFace Records13 and OutKast in Michigan on numerous grounds.14 Among other things, the plaintiff claimed that the use of her name constitutes false advertising under § 43(a) of the Lanham Act15 and that the title intrudes on her common law right of publicity under Michigan state law. The district court granted summary judgment for the defendants, LaFace Records and OutKast,16 and Parks appealed to the United States Court of Appeals for the Sixth Circuit.17 On May 12, 2003, the court of appeals reversed the Michigan decision and remanded for further proceedings.18 By reversing the summary judgment for the defendants, the court of appeals displayed the legal system's propensity to wrongfully intervene with creative expression. This intervention offended artists' First Amendment rights19 and diminished the public domain at the expense of artistic freedom.
This Recent Development first examines the plaintiff's two causes of action—the violation of § 43(a) of the Lanham Act and the violation of her right of publicity—and discusses the court of appeals' analysis of these claims. Next, this Recent Development scrutinizes three areas in which the judicial system is treading on the right of artistic expression: the broadening of § 43(a) of the Lanham Act, the expansion of a celebrity's right of publicity, and the diminution of the public domain. Finally, this Recent Development provides the judicial system with feasible alternatives that serve to reinforce the rights of artists while still acknowledging certain rights of celebrities in their personas.
II. Parks' Causes of Action
A. Lanham Act Violation
Plaintiffs often invoke § 43(a) of the Lanham Act to protect their rights in trademarks of a brand name for goods or services.20 Section 43(a) also permits celebrities to protect their property rights in their identities against misleading commercial use by others.21 As seen in Parks,22 the Lanham Act extends to protect a celebrity's economic interest in her identity, since that identity has commercial value similar to that of a traditional trademark.23 For example, Vanna White sued Samsung Electronics under § 43(a) of the Lanham Act.24 The violation was based on an advertisement for videocassette recorders in which Samsung "attempted to capitalize on White's fame to enhance their fortune."25 The advertisement depicted a robot standing in front of a game board "dressed in a wig, gown, and jewelry . . . selected to resemble White's hair and dress."26 The court stated that "a jury could reasonably conclude that beneath the surface humor . . . lay an intent to persuade consumers that celebrity Vanna White . . . was endorsing Samsung products."27
In this case, Parks argued that in using her name for its song title, OutKast falsely advertised in violation of § 43(a) of the Lanham Act.28 Parks contended that the title "misleads consumers into believing that the song is about her or that she is affiliated with the Defendants, or has sponsored or approved the Rosa Parks song and the Aquemini album."29
OutKast responded to the allegation with two defenses. First, they contended that they had not made a "trademark use" of Rosa Parks' name, arguing that such a use was required to make out a claim under the Lanham Act.30 Second, OutKast contended that even if the use of Parks' name in the title did create some consumer confusion, their First Amendment right to free speech outweighed the risk.31 The Sixth Circuit Court of Appeals rejected both defenses.
First, the court stated that "[i]t is not necessary for [the defendants] to make a 'trademark' use of Rosa Parks' name in order for her to have a cause of action for false advertising under § 43(a) of the Lanham Act."32 The court further found that although Parks' name might not be eligible for registration as a trademark, a viable cause of action exists under § 43(a) if consumers could be falsely led to believe Parks sponsored, approved, or was affiliated with the song.33
Next, the Sixth Circuit used the two-pronged Rogers v. Grimaldi34 test to reject OutKast's First Amendment defense. The court found it to be the "most appropriate" test to balance the public interest in avoiding consumer confusion with the public interest in free expression.35 The first prong determines whether the title of the piece has any "artistic relevance" to the underlying work.36 The court held that "the mere fact that the phrase 'move to the back of the bus' is an apt description of OutKast's attitude toward entertainers they regard as lesser human beings is not, in our view, a justification, as a matter of law, for appropriating the name of Rosa Parks."37
The second prong of the test requires that the "title explicitly mislead as to the source or the content of the work" in order for there to be a violation of the Lanham Act.38 Although the first prong of the test was not met, the court did admit in OutKast's favor that the title "makes no explicit statement that the work is about that person in any direct sense."39
B. Right of Publicity Violation
The right of publicity is a common law right governed by state law.40 This cause of action differs from that of false advertising under the Lanham Act because the right of publicity claim does not require any evidence that a consumer is likely to be confused.41 This right is based on the theory that a "celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity."42 The Sixth Circuit has held that "[t]he famous have an exclusive legal right during life to control and profit from the commercial use of their name and personality."43 However, expressive works are protected by the First Amendment, and celebrities are not authorized to restrict the use of their names in such works.44 The Supreme Court has held that entertainment works, such as songs, enjoy the same constitutional protection as news reports and parodies.45
OutKast contended that its use of Rosa Parks' name was not solely for commercial reasons; rather, the use of her name in the title was artistic, and the First Amendment served as a complete defense.46 Similar to the disposition of the Lanham Act violation, the court again relied on Rogers for guidance to resolve this issue. In Rogers, the Second Circuit held that a movie title is protected unless the title is "wholly unrelated" to the content of the work or was "simply a disguised commercial advertisement for the sale of goods or services."47 Ultimately, the court of appeals held that Parks' right of publicity claim presented an issue of material fact as to whether the title is or is not "wholly unrelated" to the content of the song and therefore reversed the summary judgment for the defendants.48 The court stated that "a reasonable finder of fact . . . could find the title to be a 'disguised commercial advertisement' or adopted 'solely to attract attention" to the work.'49
III. Discussion
By reversing summary judgment for the defendants, the court of appeals wrongfully tampered with creative expression. Furthermore, by restricting artistic freedom, the judicial system essentially diminishes the public domain. There are three main areas in which recent judicial intervention has negatively affected artistic expression: (1) broadening of the Lanham Act, (2) expansion of the common law right of publicity, and (3) diminution of the public domain from which artists draw for creative expression.
A. Broadening § 43(a) of the Lanham Act
Section 43(a) of the Lanham Act states:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which (A) is...
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