The rap group OutKast released a song entitled ‘Rosa Parks.’ The second line of the lyrics is ‘Everybody move to the back of the bus.’ The song was used to promote OutKast’s album and the words ROSA PARKS were used on the sticker on the packaging of the CD. Civil-rights figure Rosa Parks (well-known for her refusal to move to the back of a bus) brought suit under Section 43(a) of the Lanham Act, and right of publicity and otherstate claims. Defendant successfully moved to have the suit dismissed on summary judgement. Ms. Parks appealed.
The Sixth Circuit reversed the grant of summary judgement. It set out 3 tests for analyzing the use of a celebrity name in a title of a work:
1 – Does the title create a likelihood of confusion?
2 – Alternative avenues – Were there alternative means for the defendant to express its idea?
3 – ‘Fred and Ginger’ test – Was the use of the name artistically relevant to the work? (named after the case involving the move ‘Fred and Ginger,’ about dancers who imitate Fred Astaire and Ginger Rogers, for a living). The Second Circuit held that it would bar use of a name on a title if there was no artistic relevance or if there was relevance, if use of the title explicitly misleads as to source.
Here, the Sixth Circuit adopted the Second Circuit test, and held that it was a triable issue of fact to determine whether the use of ROSA PARKS had artistic relevance to the song. Case was remanded to determine that question.
The case contains a good discussion of the extent to which persona will be protected under Section 43(a).
tidbit: Johnnie Cochran represented Ms. Parks.
Audio sample of ‘Rosa Parks’ via Amazon here.