This story in the New York Times (noted here by Ann Bartow) on the licensing of Rosa Parks’s right of publicity is a must-read for those teaching intro IP courses. Perhaps most interesting is the role of new “rights brokers” like CMG:
The Parks Institute has decided that if it cannot beat the marketing pack, it might as well join it. In April, it hired CMG Worldwide, a company in Indianapolis that is a powerhouse in the world of celebrity licensing and merchandising. The company handles rights to such luminaries as Marilyn Monroe, James Dean and Mark Twain. Type “CMG Worldwide” into Google, and a Who’s Who of celebrity Web sites pops up: Jean Harlow, Babe Ruth, Duke Ellington, Vince Lombardi and more, all carrying virtual warning labels bearing the CMG name.
The article raises some thorny conundrums. On the one hand, one can’t help but be disturbed by the following actions of the estate of another civil rights icon, Martin Luther King:
The King family [has] accused CBS of copyright infringement after the television network began promoting a video that contained clips of Dr. King’s “I Have a Dream” speech. (The family later dropped the lawsuit in exchange for an undisclosed cash payment.) When USA Today published the same speech in 1993, the King family filed a lawsuit, which was later settled, contending copyright infringement.
King and Parks strike me as “public figures,” whose works or lives should be open to inspire all. But on the other hand, should law be creating explicit economic incentives to build “celebrity,” but fail to give IP rights to these figures, who’ve done a lot more to promote justice than, say, James Dean? This paradox reminds me of Tushnet’s recent talk on fair use doctrine’s apparent privileging of transgressive (and even misogynistic) uses over more conventional ones.
Mark McKenna has a good piece that should help us sort through some of the right of publicity issues here; he suggests that “every individual has an interest in preventing uses of her identity that strip her of control over the meaning of her identity,” and “It is that interest, and only that interest, that [right of publicity laws] should protect.” Under that rubric, I’d assume Parks could stop, say, the sale of a Parks-embossed school bus toy, but not the Outkast song. As for the copyright in King’s speech: there I’d go the same direction I mapped in my post on Joyce’s work–namely, it’s important enough to our culture that it ought to be the right of all to use it (even if we might want to develop some sort of compulsory use for clearly commercial reproductions).