Sarah Robison

                                                                                                                        Nov. 21, 2006

 

Essay #2: Rosa Parks v. LaFace Records

 

            The discourse of hip-hop has often been labeled as a contentious and intemperate addition to the American cultural milieu, and has largely been rejected as a legitimate mode of artistic expression due to its allegedly unsavory and reviled nature. As a discourse, hip-hop has continually had to defend its artistic integrity and authenticity in the face of criticism from American society. More disconcertingly, such negative socio-cultural reflection has compelled the discourse to also find necessity in defending itself when faced by threats of censorship by law. Cases such as Luke Records v. Navarro and The Estate of Bill Davidson  v. Time Warner, Inc/Tupac Shakur are demonstrative of a societal initiative to silence hip-hop within the context of the American socio-cultural dialogue via judicially mandated censorship. Although such efforts were proven unsuccessful due to free speech rights granted by the First Amendment and the demonstrated unconstitutionality of prior restraint, attempts to silence the discourse still abound within contemporary American society. The case of Rosa Parks v. LaFace Records is exemplary of such an endeavor. In the case, iconic civil rights figure Rosa Parks claimed that the song “Rosa Parks” by popular hip-hop group Outkast was a violation of her right to publicity, defamed her character, and constituted false advertising. Parks demanded that Outkast cease usage of her name and re-title the work in future distributions (Rosa Parks v. LaFace Records, 2003). As such, it can be stated that the case of Rosa Parks v. LaFace Records is demonstrative of the instability of the First Amendment in ensuring freedom of artistic expression in cases involving property rights and the right to publicity, and also explicates how the usage of property rights and the right of publicity serve to act as a form of prior restraint.

                        In the case of Rosa Parks v. LaFace Records, Rosa Parks, a symbolic figure of the civil rights movement, sought the reversal of an initial decision granted by a Michigan District Court and requested summary judgment to be granted in her favor in a suit against contemporary hip-hop group Outkast over their usage of her name as the title of their single, “Rosa Parks”. Parks’ asserted that the usage of her name constituted false advertising under the Lanham Act, an article of legislation that serves to create:

            … a civil cause of action against any person who identifies his or her product in a way as             to likely cause confusion among consumers or to cause consumers to make a mistake or     to deceive consumers as to the 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. (Rosa Parks v. LaFace Records, 2003)

 

Parks felt that the usage of her name as the song title “[would mislead] consumers into believing that the song is about her or that she is affiliated with [Outkast], or has sponsored or approved the ‘Rosa Parks’ song and the Aquemini Album” (Rosa Parks v. LaFace Records, 2003). Parks’ also contended that, in addition to constituting false advertising under the Lanham Act, the usage of her name as the song title infringed on her right to publicity, defamed her character, and interfered with ongoing business relationships. Because summary judgment “is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law”, Parks assessed that no question of fact existed, and the federal Appellate Court should waive a jury trial and directly rule in her favor, thereby ordering Outkast to re-title their song in future distributions (Rosa Parks v. LaFace Records, 2003).

            In defense to Parks’ allegations, LaFace Records and Outkast contended that their right to freedom of speech granted by the First Amendment should prevail over Parks’ claims, regardless if her claims could be proven to be accurate under law.  According to their defense, “even if use of the title posed some risk of consumer confusion, the risk is outweighed by the First Amendment right to free expression” (Rosa Parks v. LaFace Records, 2003). Concordantly, LaFace Records also ruled for summary judgment in their favor under the rationalization that no question of fact existed because of the precedence of their First Amendment right to free speech, an opinion that was upheld by the initial decision of the Michigan District Court.

            The case of Rosa Parks v. LaFace Records is demonstrative of the instability of the First Amendment in ensuring freedom of artistic expression in cases involving property rights and the right to publicity. Such instability becomes most clear through an analytical examination of the First Amendment defense presented by LaFace Records in response to Parks’ allegations of false advertising under the Lanham Act. According to federal District Judge John D. Holschuh, “from ancient times, music has been a means by which people express ideas. As such, music is firmly ensconced within the protections of the First Amendment” (Rosa Parks v. LaFace Records, 2003). Because music represents a viable and integral cultural discourse, it is Constitutionally protected as both a form of expression and communication. However, such protection is often substantially destabilized when artistic expression coincides with property rights and publicity interests. As the Courts have observed, “trademark [and property] protection is not lost simply because the allegedly infringing use is in connection with a work of artistic expression” (Rosa Parks v. LaFace Records, 2003). In order to disentangle such paradoxical and differing principles, the Court system has established multiple methods by which they can evaluate conflicting interests between the First Amendment and the Lanham Act. Such methods include the likelihood of confusion test, the alternative avenues test, and the Rogers v. Grimaldi test. In Rosa Parks v. LaFace Records, the Rogers v. Grimaldi test was applied to evaluate Parks’ allegations of false advertising under the Lanham Act and LaFace Record’s First Amendment defense.

            The Rogers test states, “a title will be protected unless it has ‘no artistic relevance’ to the underlying work or, if there is artistic relevance, the title ‘explicitly misleads as to the source or the content of the work’ ” (Rosa Parks v. LaFace Records, 2003). Therefore, under Rogers, an initial determination was necessary to establish if the title, “Rosa Parks”, genuinely maintained artistic relevance to the song in its entirety. LaFace Records and Outkast asserted that their usage of Parks’ name in the title is “metaphorical and symbolic” and is therefore entirely artistically relevant to the song (Rosa Parks v. LaFace Records, 2003). Because the lyrics of the song include the hook, “Ah ha hush that fuss, everybody move to the back of the bus”, the historical relationship between Parks and the phrase, “move to the back of the bus” only served to legitimize Outkast’s metaphorical and symbolic usage of her name (Outkast, 1998). Although the lower District Court “was of the opinion that the artistic relationship between the title and the song was obvious”, the Appellate Court was of a dissenting opinion (Rosa Parks v. LaFace Records, 2003).  According to the decision, the Appellate Court determined “it would not be unreasonable to conclude that the title, ‘Rosa Parks’ is not relevant to the content of the song in question” and was instead utilized as a marketing tool (Rosa Parks v. LaFace Records, 2003). Because a sincere question of material fact exists regarding the artistic relevance of the title to the song, the Rogers test cannot be considered satisfied, and any First Amendment defense is temporarily nullified. As the Court noted, “A misleading title with no artistic relevance cannot be sufficiently justified by a free expression interest” (Rosa Parks v. LaFace Records, 2003). The reliance of the Court on the ideology of artistic relevance when determining First Amendment protection in cases involving property rights and the right of publicity serves to substantially destabilize the right of freedom of artistic expression granted by the First Amendment. Because artistic relevance is a fundamentally arbitrary label, as demonstrated by the dissent between the opinions of the District Court and the Appellate Court, it is not an entirely stable factor by which Constitutional protection can be established. Furthermore, the determination of artistic relevance often does not account for devices of artistic licensure, such as metaphorical and symbolic speech as utilized by Outkast, which may make artistic relevance somewhat ambiguous or masked. Such ambiguity and subjectivity greatly destabilize any First Amendment protection of artistic works conflicting with property rights and the right to publicity.

             The case of Rosa Parks v. LaFace Records also explicates how property rights and the right of publicity serves to act as a form of prior restraint, or an attempt to prevent publication or broadcast of a statement (Riviere). The right to publicity serves to act as a form of property right, and “protects the identity of a celebrity from exploitative commercial use … because a celebrity’s identity can be valuable in the promotion of products” (Rosa Parks v. LaFace Records, 2003). However, such a right to publicity is often unjustly invoked in order to prevent seemingly unfavorable artistic usage of a name, or to prevent others from profiting economically from inclusion of the name in an artistic work. Such was the case in Rosa Parks v. LaFace Records, in which Parks alleged that LaFace Records and Outkast “profited from her fame by using her name solely for a commercial purpose”. (Rosa Parks v. LaFace Records, 2003).  Because a right of publicity claim does not require any evidence of consumer confusion as in a false advertising claim, Parks only had to establish “a pecuniary interest in her identity, and that her identity had been commercially exploited” (Rosa Parks v. LaFace Records, 2003). As such, her claims could easily be substantiated by finding that the song “Rosa Parks” was merely a disguised commercial advertisement.

            Such property rights and the right to publicity serve to act as a form of prior restraint because of the subjective and vague nature of claims of violation of such rights. As in the case of Rosa Parks v. LaFace Records, a celebrity must only prove commercial exploitation of their name. However, commercial exploitation can easily be argued under any circumstances because it is an entity fundamentally dependent on interpretation for its realization and is largely a matter of opinion. Furthermore, because celebrities can easily invoke such violation of their right to publicity to prevent unfavorable associations of their name with a particular artistic work or product, nearly any non-licensed or non-approved usage of their name is vulnerable to condemnation. Because claims of violation of publicity rights are so ambiguous and subjective in nature, they are often unjustly utilized and serve to largely impede and destabilize freedom of speech as granted by the First Amendment. Although right to publicity and property rights violations regularly require a judicial mandate to be in effect, they still function as a form of prior restraint because they prevent publication or broadcast of any statement or material and are seemingly achieved on  subjective and illegitimate grounds.

            The case of Rosa Parks v. LaFace Records is exemplary of the common societal initiative to silence hip-hop within the context of the American socio-cultural dialogue via judicially mandated censorship, and is also demonstrative of the instability of the First Amendment in ensuring freedom of artistic expression in cases involving property rights and the right to publicity. Because a paradoxical disentanglement exists between freedom of artistic expression and property rights and publicity interests, it is often difficult to judicially separate such competing principles. As demonstrated in Rosa Parks v. LaFace Records, the First Amendment right to freedom of speech and artistic expression is often the principle most destabilized and least protected by such conflicting interests. The case of Rosa Parks v. LaFace Records also serves to explicate how the usage of property rights and the right to publicity serves to act as a form of prior restraint due to the arbitrary and ambiguous nature of claims of violation of such rights. As a discourse, hip-hop has continually had to defend its artistic integrity and authenticity in the face of criticism from American society and also from threats of censorship by law. However, such criticism has only served to strengthen the discourse and has enhanced its progression as a legitimate and fundamental mode of artistic expression. As such, hip-hop has become an integral American socio-cultural discourse that has continually served to redefine cultural views of artistic and musical expression.