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Rosa Parks Is Still Rewriting Laws

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Rosa Parks now belongs to the ages -- literally. The U.S. Court of Appeals for the 11th Circuit has ruled that the estate of the civil-rights pioneer can’t block the use of her image on a commemorative plaque being sold at a Target near you, because she and her story are matters of public interest. The case raised the crucial question of who owns a person’s story once he or she has been in the news. Construed broadly, the decision could mean the end of life-rights sales to the motion-picture industry.

Like most property rights, the privacy right to control your own image and story is a matter of state law. The federal court decided the case under Michigan law, because Michigan is where the foundation that inherited Parks’s estate is located.

At issue were five factual biographies of Parks, one fictionalized children’s book about her childhood and the plaque. It shows her photo, a picture of the bus in which she refused to give up her seat, and a quotation: “People always say that I didn’t give up my seat because I was tired, but that isn’t true. I was not tired physically… I was forty-two. No, the only tired I was, was tired of giving in.”

The quotation is an important reminder of what scholars of civil rights have long noted about Parks, namely that she was a committed supporter and the secretary of her local NAACP chapter before becoming the catalyst for the Montgomery, Alabama, bus boycott. Myth may depict her as a spontaneous actor, but in fact she was an activist enmeshed in an emergent social movement.

The 11th Circuit to some extent missed this point in its dramatic recounting of her refusal to give up her seat. Its version of the story, with which the court’s opinion began, simply describes her as having “had enough” after “a long day of work.”

But the appeals court was right to say that it’s “beyond dispute that Rosa Parks is a figure of great historical significance and the Civil Rights Movement a matter of legitimate and important public interest.”

The court analyzed the issue by balancing the individual’s state-law right to the “exclusive use” of his or her own identity against the general right to communicate on matters of public interest, a right found both in the Michigan Constitution and in the First Amendment to the U.S. Constitution. (The court’s holding didn’t consider the use of someone’s image in advertising, which is considered to be in the category of “commercial speech,” which means the free speech interest is lower and people can still control or prohibit the use of their images.)

Applying this balance to Parks’s image and to the biographies yielded the conclusion that the general right to speak about her career and life outweighed her estate’s interest in controlling her image. And the court went out of its way to say that the balance “is not a constant but varies with the situation and the importance of the social issues at stake.”

But determining what counts as a matter of legitimate public interest is a dicey business. And that’s where the consequences of the judgment become interesting -- and complicated.

Consider someone whose story and image enter the public consciousness through no individual choice, like merchant marine captain Richard Phillips, hijacked by Somali pirates and rescued by Navy SEALs on the Maersk Alabama on the Indian Ocean in 2009. Phillips’s story was, it would seem, of public importance. Thus, if someone had made a film about him without his consent, he’d have no rights to control it under the 11th Circuit decision.

What happened in fact was that Phillips wrote a book, then sold the movie rights to Sony Pictures, which made the film after Tom Hanks signed on to play Phillips. That’s the usual, although not exclusive, way for films to be made about real people. Sometimes the book stage can be skipped, and an individual can sell his or her “life rights” to make one’s life story into a movie.

The reasons for Hollywood’s life-rights phenomenon are subtle. Producers may want to be able to say the subject cooperated with them, and they usually want to prevent competing films. But most basically, producers want to be sure they won’t be sued by individuals who say their image and story are being used without their consent. The lawsuits might not succeed, but the risk could hold up production and so stop a film from being greenlighted.

The 11th Circuit’s decision is a step along the way to reducing that worry -- and eliminating the need to buy life rights. Essentially anyone whose life story is interesting enough to merit a film will already have been subject to media attention. And that attention should demonstrate that the subject is of public interest under the court’s test.

Think about it: How many movies are made about real people whose stories are so unimportant that they aren’t worthy of public discussion? You might even say the making of the film is proof of the subject’s public importance.

It might at first blush seem that there should be a difference between a written biography and the use of someone’s image. If that were so, then you could write a biography without life rights, but not make a movie that depicts the subject.

On closer examination, however, it’s hard to distinguish my control over the facts of my life from my control over my image. Both are seen and construed by other people. And both are public, unless I live my life without ever going outside or interacting with anyone else.

Other courts may not follow the 11th Circuit. But if they do, the very American idea that you are entitled to have a say -- and some money -- when a film is made about your life may eventually become obsolete. That might be a win for free speech. But it would be a blow to individual property rights.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net