Rosa & Raymond Parks Inst. For Self Dev. v. Target Corp., 15–10880.

• Decision Date: 04 January 2016
• Docket Number: No. 15–10880.,15–10880.
• Citation: 812 F.3d 824
• Parties: ROSA AND RAYMOND PARKS INSTITUTE FOR SELF DEVELOPMENT, Plaintiff–Appellant, v. TARGET CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

812 F.3d 824

ROSA AND RAYMOND PARKS INSTITUTE FOR SELF DEVELOPMENT, Plaintiff–Appellant,

v.TARGET CORPORATION, Defendant–Appellee.

No. 15–10880.

United States Court of Appeals, Eleventh Circuit.

Jan. 4, 2016.

Gwendolyn Thomas Kennedy, Kennedy Law Group, LLC, Montgomery, AL, for Plaintiff–Appellant.

James R. Steffen Peter M. Routhier Mary Andreleita Walker Faegre Baker Daniels, LLP Minneapolis, MN Helen Kathryn Downs Butler Snow, LLP Birmingham, AL for Defendant–Appellee.

Before ROSENBAUM, JULIE CARNES, and DUBINA, Circuit Judges.

ROSENBAUM, Circuit Judge:

It was December 1, 1955. Although more than a year had passed since the Supreme Court issued Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), invalidating Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), and its separate-but-equal doctrine, change was slow to arrive in Alabama.

Rosa Parks had had enough. After a long day of work, she boarded the bus in downtown Montgomery and took a seat.¹ Once the bus filled up, some white men boarded and could find no seats. Id. at 83. So the bus driver demanded that Parks and some other African–Americans give their seats to the white men. Id.

Though the other passengers yielded, Parks refused. Id. In later years, she explained, "[W]hen that white driver stepped back toward us, when he waved his hand and ordered us up and out of our seats, I felt a determination to cover my body like a quilt on a winter night." Donnie Williams & Wayne Greenhaw, THE THUNDER OF ANGELS: THE MONTGOMERY BUS BOYCOTT AND THE PEOPLE WHO BROKE THE BACK OF JIM CROW 48 (Chicago Rev. Press 2005). Upon seeing Parks continuing to sit, the bus driver persisted, asking Parks if she was going to stand. Juan Williams, EYES ON THE PRIZE: AMERICA'S CIVIL RIGHTS YEARS, 1954–1965 66 (Penguin Books 1987).

Parks said, "No, I'm not." Id. And when the bus driver threatened to call the police, Parks calmly answered, "You may do that." Id. The police arrived and arrested Parks for refusing to relinquish her bus seat to a white passenger in accordance with Montgomery city law. Id. at 87.

Parks's courageous act inspired the Montgomery Bus Boycott and served as the impetus for the modern Civil Rights Movement, transforming the nation.² Id. In response to Parks's arrest, for 381 days, 42,000 African–Americans boycotted Montgomery buses, until the United States Supreme Court held the Montgomery segregation law unconstitutional and ordered desegregation of the buses. Act of May 4, 1999, Pub.L. No. 106–26, § 1(4), (5), 113 Stat. 50, 50 (awarding Parks the Congressional gold medal).

Parks's refusal to cede ground in the face of continued injustice has made her among the most revered heroines of our national story; her role in American history cannot be over-emphasized. Indeed, the United States Congress has recognized Parks as the "first lady of civil rights" and the "mother of the freedom movement," and it has credited Parks with "ignit[ing] the most significant social movement in the history of the United States." Id. at § 1(2).

So it is not surprising that authors would write about Parks's story and artists would celebrate it with their works. The commemoration and dissemination of Parks's journey continues to entrench and embolden our pursuit of justice. And it is in the general public interest to relentlessly preserve, spotlight, and recount the story of Rosa Parks and the Civil Rights Movement—even when that interest allegedly conflicts with an individual right of publicity.

I.

The Rosa and Raymond Parks Institute for Self Development (the "Institute") is a Michigan 501(c)(3) non-profit corporation³ that owns the name and likeness of the late Rosa Parks⁴ pursuant to a right-of-publicity assignment. Target Corporation ("Target"), a national retail corporation headquartered in Minneapolis, Minnesota, operates more than 1,800 retail stores across the United States.

Target offered seven books about Parks for retail: (1) Rosa Parks: My Story, by Rosa Parks and Jim Haskins⁵ ; (2) Who Was Rosa Parks?, by Yona Zeldis McDonough; (3) Rosa Parks: Childhood of Famous Americans, by Kathleen Kudlinski; (4) Rosa Parks, by Eloise Greenfield; (5) A Picture Book of Rosa Parks, by David A. Adler⁶ ; (6) The Rebellious Life of Mrs. Rosa Parks, by Jeanne Theoharis⁷ ; and (7) The Story of Rosa Parks, by Patricia A. Pingry.⁸ Target also sold the American television movie, The Rosa Parks Story,⁹ and a collage-styled plaque that included, among other items, a picture of Parks, alongside Dr. Martin Luther King, Jr.¹⁰

The plaque was emblazoned with the title, "Civil Rights." Besides Parks's photograph and a statement of the years that she lived, the plaque included the word, "CHANGE," and it contained a photograph and diagram of the bus where Parks threw down the Civil Rights Movement gauntlet, as well as a picture of the Congressional Gold Medal that Parks was later awarded. Overlaid on the photograph of Parks and Dr. King was the statement, "People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically ... [.] I was not old ... [.] I was forty two. No, the only tired I was, was tired of giving in."

Stephanie Workman Marrott, the professional artist who designed the plaque, explained that she created it to "tell[ ] a story about civil rights in America ... [to] describe important aspects of American history and convey a message about those events." She added that her decision to "include[ ] the name and image of Rosa Parks, as well as an image of the Montgomery bus and the word ‘CHANGE,’ was in order to tell the story of Rosa Parks and the civil rights movement in a way that would convey an inspirational message about standing up for what you believe is right and what you believe in."

Six of the books, the movie, and the plaque became available for sale on Target's website or in some of its retail stores before November 2011. In 2013, the Theoharis book was added to Target's online retail. There is no evidence in the record that any of the products say "Target" on them or are otherwise identifiably affiliated with Target in any way other than that Target offered them for sale.

On November 6, 2013, the Institute filed the underlying complaint in the Middle District of Alabama. Invoking diversity jurisdiction, the Institute alleged claims for unjust enrichment, right of publicity, and misappropriation under Michigan common law for Target's sales of all items using the name and likeness of Rosa Parks.

Generally, the Institute complained that, by selling the products identified above, Target had unfairly and "without [the Institute's] prior knowledge, or consent, used [Parks's] name, likeness, and image to sell products and did promote and sell products using [Parks's] name, likeness, and image for [Target's] own commercial advantage." After Target sought summary judgment, the district court dismissed the complaint, and this appeal followed. We now affirm the district court's dismissal of the Institute's complaint.

II.

The "starting point ... in all cases in which subject-matter jurisdiction is premised on diversity of citizenship[ ] is Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)." Ellis v. Great Sw. Corp., 646 F.2d 1099, 1102–03 (5th Cir.1981).¹¹ Because no federal common law exists, under Erie, a federal court sitting in diversity applies the substantive law of the state in which it sits except in cases governed by federal law or the United States Constitution. Id. Here, Alabama's choice-of-law rules control and hold that the procedural law of the forum state is applied, while the law of the state in which the injury occurred governs the substantive rights of the case. Fitts v. Minn. Min. & Mfg. Co., 581 So.2d 819, 820 (Ala.1991). Accordingly, in this case we apply the procedural rules of Alabama and the substantive law of Michigan.¹²

In consulting Michigan's laws, we first consider rulings of Michigan's Supreme Court. See Bailey v. S. Pac. Transp. Co., 613 F.2d 1385, 1388 (5th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42 (1980). Where the highest court in the state has rendered no decisions on point, however, we must follow the opinions of Michigan's intermediate courts, unless we are "convinced that the highest court would decide otherwise." Id. (citing Comm'r v. Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) ).

In Michigan, the common-law right of privacy protects against four types of invasions of privacy:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation for the defendant's advantage, of the plaintiff's name or likeness.

Tobin v. Mich. Civ. Serv. Comm'n, 416 Mich. 661, 331 N.W.2d 184, 189 (1982) (quoting Beaumont v. Brown, 401 Mich. 80, 257 N.W.2d 522, 533 (1977), overruled on other grounds by Bradley v. Saranac Cmty. Sch. Bd. of Educ., 455 Mich. 285, 302, 565 N.W.2d 650, 658 (1997) ). The last category of invasion of privacy—misappropriation of a person's name or likeness—is commonly referred to as a violation of the "right of publicity." Ruffin–Steinback v. dePasse, 82 F.Supp.2d 723, 728–29 (E.D.Mich.2000) (applying Michigan law), aff'd, 267 F.3d 457 (6th Cir.2001).

Michigan's common-law right of publicity "is founded upon ‘the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others.’ " Battaglieri v. Mackinac Ctr. for Pub. Pol'y, 261 Mich.App. 296, 680 N.W.2d 915, 919 (2004) (quoting RESTATEMENT SECOND OF TORTS, § 652C cmt. a (1977)). This particular privacy right guards against the appropriation of "the commercial value of a person's identity by using without consent the person's name, likeness, or...