A Celebrity Balancing Act: An Analysis of Trademark Protection under the Lanham Act and the First Amendment Artistic Expression Defense
2005; Northwestern University School of Law; Volume: 99; Issue: 4 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Law, Rights, and Freedoms
ResumoA CELEBRITY BALANCING ACT: AN ANALYSIS OF TRADEMARK PROTECTION UNDER THE LANHAM ACT AND THE FIRST AMENDMENT ARTISTIC EXPRESSION DEFENSE I. INTRODUCTION In September of 1998, the rap music duo OutKast released the album Aquemini, which contained the popular song, Rosa Parks.1 On the Aguemini album cover, next to a label describing Rosa Parks as a single, is a Parental Advisory sticker warning of the song's explicit content.2 The lyrics of the song's hook, or chorus, are as follows: Ah ha, hush that fuss Everybody move to the back of the bus Do you wanna bump and slump with us We the type of people make the club get crunk3 The song contains no direct reference to Rosa Parks4 other than the title and what may be implied by the line everybody move to the back of the bus.5 The song Rosa Parks garnered positive reviews, with OutKast receiving a Grammy nomination for the hit single6 and the Aquemini album achieving multi-platinum status;7 however, not everyone was pleased with the song and its success. Rosa Parks filed suit against OutKast8 and LaFace records, the group's producer, and several other named affiliates, claiming that OutKast's unauthorized use of her name as the title of their song violated her common law right of publicity9 and was a false advertising violation under section 43(a) of the federal Lanham Act.10 Gregory Reed, Ms. Parks's lawyer, stated that to her name associated with lyrics that contain vulgarity and profanity is a state of affairs that Ms. Parks does not appreciate.11 Due to her widely recognized role in the civil rights movement, Rosa Parks is known to many as a symbol of freedom, humanity, dignity, and strength.12 To find a name with these connotations on the cover of a music album that contains a Parental Advisory warning for explicit content is certainly enough to upset and offend not only Rosa Parks herself, but also many of those who view her as a symbol of the entire civil rights movement.13 Of additional concern is the possibility that the use of Rosa Parks's name as the title of the song would be viewed by the public as an approval, sponsorship, or endorsement of the views contained within the song.14 However, before Rosa Parks's case went to a jury, the district court granted the defendant's motion for summary judgment, noting that the First Amendment could operate as a defense to Rosa Parks's state right of publicity claim and that First Amendment interests were of significant concern in deciding her federal Lanham Act claims.15 The district court found that there was an obvious relationship between the Rosa Parks title and the content of the song.16 The court also found that, even if there were some of regarding the endorsement or sponsorship of the song,17 any risk ofthat nature was outweighed by the defendants' First Amendment rights to freedom of expression.18 Based on this conclusion, the district court granted summary judgment for the defendants on Parks's right of publicity and Lanham Act claims.19 Rosa Parks then appealed the rulings on these issues to the Court of Appeals for the Sixth Circuit. The Sixth Circuit faced the challenge of determining whether OutKast had a First Amendment right to use Rosa Parks's name as the title of their song given the protections of federal trademark law under the Lanham Act. The issue before the court was not a typical instance of trademark infringement; rather, it involved the tension between the protections of trademark law and the liberty interests embodied in the First Amendment. Under the Lanham Act, a celebrity,20 such as Rosa Parks, has the ability to vindicate property rights in her identity against misleading commercial use by others.21 However, the First Amendment protections of expression can serve as a limitation on the application of the Lanham Act.22 In resolving the Lanham Act issue on appeal, the Sixth Circuit examined three different approaches that courts have adopted to balance First Amendment interests with the protections of the Lanham Act: (1) the likelihood of confusion test, (2) the alternative avenues test; and (3) the artistic relevance test articulated by the second Circuit in Rogers v. …
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