Parks v. Laface Records

• Citation: 76 F.Supp.2d 775
• Decision Date: 18 November 1999
• Docket Number: No. 99-CV-60256-AA.,99-CV-60256-AA.
• Parties: Rosa PARKS, Plaintiff, v. LAFACE RECORDS, Arista Records, Inc., BMG Entertainment, Outkast, Kenny B. Edmonds, Antonio M. Reid, and agents, attorneys and John and Jane Does, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

76 F.Supp.2d 775

Rosa PARKS, Plaintiff, v. LAFACE RECORDS, Arista Records, Inc., BMG Entertainment, Outkast, Kenny B. Edmonds, Antonio M. Reid, and agents, attorneys and John and Jane Does, Defendants.

No. 99-CV-60256-AA.

United States District Court, E.D. Michigan, Southern Division.

November 18, 1999.

COPYRIGHT MATERIAL OMITTED

Gregory J. Reed, Gregory J. Reed Assoc., Detroit, MI, for plaintiff.

Blanche B. Cook, Philip B. Phillips, Miller, Canfield, Detroit, MI, Joseph M. Beck, Kilpatrick, Stockton, Atlanta, GA, Conrad L. Mallett, Jr., Miller, Canfield, Detroit, MI, for defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND INJUNCTIVE RELIEF AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

HACKETT, District Judge.

Plaintiff Rosa Parks is a well-known public figure who has been recognized as an international symbol of freedom, humanity, dignity and strength for over 43 years. Plaintiff's notoriety arose from her heroic stance against racial inequality in the South when on December 1, 1955, in Montgomery, Alabama, she refused to give up her seat to a white passenger and move to the back of the bus. This one defiant act precipitated a 381-day bus boycott that ended segregation on public transportation and ultimately sparked the Civil Rights Movement of the 1960's. The above-captioned case presents a conflict between plaintiff's right to protect her celebrated name and the First Amendment right of others to use her name in an expressive work. Specifically at issue is whether plaintiff can prevent the use of her name as the title of a rap song written, performed, marketed and distributed by defendants. Now before the court are the parties' cross-motions for summary judgment. Oral argument was heard on November 4, 1999. For the following reasons, plaintiff's motion shall be denied, and summary judgment shall be granted regrettably in defendants' favor.

I. FACTS

The facts relevant to disposition of this matter are few and undisputed. Defendants are entertainers and producers of popular music. Specifically, Kenny Edmonds and Antonio Reid¹ are recording artists and the members of the musical group Outkast, whose services are contractually rendered to LaFace Records. LaFace is a record company engaged in the business of creating, manufacturing and distributing musical sound recordings. LaFace's recordings are manufactured and distributed by a variety of entities under the auspices of Arista Records and BMG Entertainment.

During the week of September 28, 1998, defendants released Outkast's album called Aquemini, which included a total of 15 songs. The album's first single release was track number three, a song entitled "Rosa Parks." Plaintiff is not mentioned by name in the lyrics, and the song is not about her or the Civil Rights Movement. However, the chorus includes the words "Ah, ha, hush that fuss. Everybody move to the back of the bus," which are repeated a total of ten times over the course of the work.

The band Outkast, the album Aquemini, and the song "Rosa Parks" have all enjoyed a great degree of critical acclaim. Aquemini has sold over two million copies (double platinum status), and "Rosa Parks" has enjoyed long-lasting success on the Billboard Charts. In fact, Outkast received their first-ever Grammy nomination for the song. Consequently, defendants have advertised and promoted the Aquemini album, the hit single "Rosa Parks" and its Grammy nomination in ways that are customary in the music business, such as in print advertisements, in a music video, and with stickers affixed to the front of each cassette and compact disc jewel case indicating that the album contains "The Hit Singles `Rosa Parks' And `Skew It On The Bar-B.'"²

No legal relationship of any kind exists between plaintiff and defendants, and defendants did not attempt to secure plaintiff's permission to use her name prior to the release of their Aquemini album. Plaintiff, however, opposes defendants' use of her name without compensation. In particular, plaintiff is offended by the use of her name in association with music that contains, according to plaintiff, "profanity, racial slurs, and derogatory language directed at women." To date, defendants have continued to use plaintiff's name on and in connection with the song "Rosa Parks" and the album Aquemini. Accordingly, plaintiff filed this lawsuit seeking monetary and injunctive relief. The court now turns to the parties' pending motions.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See F.D.I.C. v. Alexander, 78 F.3d 1103, 1106 (6th Cir.1996). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir.1992).

The standard for determining whether summary judgment is appropriate is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir. 1994) (citing Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989)). The evidence and all inferences therefrom must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Enertech Elec., Inc. v. Mahoning County Comm'rs, 85 F.3d 257, 259 (6th Cir.1996); Wilson v. Stroh Companies, Inc., 952 F.2d 942, 945 (6th Cir.1992). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir.1996).

If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir.1995). Mere allegations or denials in the nonmovant's pleadings will not meet this burden. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Further, the non-moving party cannot rest on its pleadings to avoid summary judgment. It must support its claim with some probative evidence. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993).

III. DISCUSSION

A. Right of Publicity Claim (Count I)

In Count I of the complaint, plaintiff alleges that defendants' use of her name violates her common law right of publicity. The right of publicity protects a celebrity's commercial interest in her identity. "The theory of the right is 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." Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir.1983) (emphasis added). The right of publicity, however, does not authorize a celebrity to prevent the use of her name in an expressive work protected by the First Amendment. 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition §§ 28:40-28:41 (4th ed.1999); see also Hicks v. Casablanca Records, 464 F.Supp. 426, 430 (S.D.N.Y. 1978) ("[M]ore so than posters, bubble gum cards, or some other such `merchandise,' books and movies are vehicles through which ideas and opinions are disseminated and, as such, have enjoyed certain constitutional protections, not generally accorded `merchandise.'"); Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 450, 299 N.Y.S.2d 501, 508 (1968) ("[E]ven where the `right of publicity' is recognized, it does not invest a prominent person with the right to exploit financially every public use of name or picture. What is made actionable is the unauthorized use for advertising purposes in connection with the sale of a commodity.").³ Clearly, "[m]usic as a form of expression and communication, is protected under the First Amendment." Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (paintings, music and poetry are "unquestionably shielded" by the First Amendment).

Similarly, titles of artistic works that use the names of public figures and celebrities, like the works themselves, are entitled to First Amendment protection from right of publicity claims:

Titles, like the artistic works they identify, are of a hybrid nature, combining artistic expression and commercial promotion. The title of a movie may be both an integral element of the film-maker's expression as well as a significant means of marketing the film to the public. The artistic and commercial elements of titles are inextricably intertwined. Film-makers and authors frequently rely on word-play, ambiguity, irony, and allusion in titling their works. Furthermore, their interest in freedom of artistic expression is shared by their audience. The subtleties of a title...