This was a tough one. One of the most revered Civil Rights Leaders of all time sued my favorite, and one of the best Hip-Hop groups of all time, OutKast. The suit stemmed from an OutKast song titled Rosa Parks—Hence the lawsuit. Check out the video below:
In the civil suit, Mrs. Parks claimed that OutKast violated her right to publicity under Michigan state law, 15 U.S.C. § 1125(a), § 43(a) of the Lanham Act, and defamation.
Right to Publicity:
…with respect to a right of publicity claim, a title that uses a celebrity’s name will be protected by the First Amendment 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.
The purpose of the right to publicity is to protect the person’s economic interest in their likeness. Imagine if someone else was allowed to sell Jordan sneakers without Michael Jordan’s permission or economic benefit. To prove that a person’s right to publicity has been violated, the person must prove that he or she has a pecuniary interest in their identity and that it was economically exploited.
In this case, obviously Rosa Parks has an economic interest in her name, and obviously, OutKast used her name for economic gain. But OutKast argued that their First Amendment right to artistic expression outweighs Parks claims.
Ok, it took me at least 45minutes to realize that the Lanham Act and 15 U.S.C. § 1125 are the same thing but that’s neither here nor there.
15 U.S.C. § 1125(a)/The Lanham Act:
Section 43(a) of the Lanham Act creates a civil cause of action against any person who identifies his or her product in such a way as to likely cause confusion among consumers or to cause consumers to make a mistake or to deceive consumers as to association of the producer of the product with another person or regarding the origin of the product or the sponsorship or approval of the product by another person.
the scope of § 43(a) extends beyond disputes between producers of commercial products and their competitors. It also permits celebrities to vindicate property rights in their identities against allegedly misleading commercial use by others.
For a celebrity to win a claim under this section, they have to prove that:
use of his or her name is likely to cause confusion among consumers as to the “affiliation, connection, or association” between the celebrity and the defendant’s goods or services or as to the celebrity’s participation in the “origin, sponsorship, or approval” of the defendant’s goods or services
Now, I, and most of us, have a great deal of respect for Mrs. Rosa Parks, but nobody in their right mind that actually listened to that song was confused about Rosa Parks and OutKast’s affiliation (except for the 21 people she provided affidavits from that thought she had approved of or what affiliated with the song—apparently, there was a tribute album in her honor released around the time of the song at issue—who knew?). OutKast argued that since she doesn’t have a Trademark in her name, her argument should fail.
OutKast argued that since she doesn’t have a Trademark in her name, and since they did not use her name in a trademark manner (like selling Rosa Parks brand CD’s) her argument should fail. The court disagreed with this argument, mainly because OutKast (meaning their lawyer) interpreted the law wrong. They didn’t have to be using her name in a trademark manner to violate the statute.
Either way, the court went into a deep analysis of whether the song title had “no artistic relevance” to the underlying work or, if there was artistic relevance, the title “explicitly misleads as to the source or the content of the work”.
In the end, the parties settled out of court. But the analysis of whether Rosa Parks had any artistic relevance to the song Rosa Parks, is where I completely disagree with the court, and their failure to contextualize the song, and hip hop in general.
The court in its analysis stated that the song had no relevance to Rosa Parks as a person or Civil Rights icon, therefore the use of her name was primarily for economic/marketing gain.
Here’s why that’s wrong.
- They used the wrong literary term to describe the relationship between Rosa Parks the person, and Rosa Parks the song. The court analyzes this case based on symbolism and metaphors when they really should have thought of the song as an analogy. Rosa Parks is synonymous with her refusal to move to the back of the bus, and the back of the bus is synonymous with inferiority. The song is titled Rosa Parks as a nod to OutKast refusing to sit at the back of the bus, and telling every other music group to sit back there. OutKast is to Rosa Parks as other groups are to the back of the bus. It ain’t pretty, but you get the point. To be fair, OutKast’s lawyer also used symbolism as an argument instead of analogical expression so it may be been in an attempt to meet statutory requirements more directly.
- They analyze the song without respect to Hip-Hop culture. Success in Hip-Hop, specifically rapping, is measured by a number of things. One of them is lyricism. The use of metaphors, punchlines, analogies, etc. effectively creates a reputation for skill. Some of the best rappers have excelled in this area. Think Tupac, J.Cole, Nas, and Eminem for example. Without respect to this factor, the court excludes an important, non-economic motivation for use of Rosa Parks name.
- They completely underestimated OutKast’s fan base and ability to market/sell record based on their own fame.
On another note, Rosa Parks’ family has been quoted questioning the legitimacy of this lawsuit, to begin with. They believed that her caretakers and lawyers may have been pursuing this case for their own financial gain. Mrs. Parks was suffering from Dementia. Her niece stated in an interview with the Associated Press “As a family, our fear is that during her last days Auntie Rosa will be surrounded by strangers trying to make money off of her name.” I know, the irony.
Image via Flickr, CC (Bleu Egret)