09 December 2003

A Misleading Title
In an article entitled High Court Casts Aside Atlanta Rap Duo's Plea, a legal newspaper engages in an unusually ironic degree of reflexiveness. The article notes that the Supreme Court yesterday refused to grant certiorari (hear the appeal) in the Rosa Parks/rapper case. Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) (HTML). Perhaps in overreaction to the smackdown that the Sixth Circuit (including one of the judges on this panel!) received in Campbell aka Skyywalker v. Acuff-Rose Music, Inc., 510 U.S. 569 (199) ("2Live Crew") (HTML), the Sixth Circuit allowed the Parks case to go to trial, concluding that

We are not called upon in this case to judge the quality of Defendants' song, and whether we personally regard it as repulsive trash or a work of genius is immaterial to a determination of the legal issues presented to us. Justice Holmes, 100 years ago, correctly observed that, "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits." The same is no less true today and applies with equal force to musical compositions. The point, however, is that while we, as judges, do not presume to determine the artistic quality of the song in question, we have the responsibility, as judges, to apply a legal standard of "artistic relevance" in resolving the rights of Rosa Parks concerning the use of her name and the First Amendment rights of the Defendants in the creation and marketing of a musical composition. Application of that standard involves a recognition that Rosa Parks has no right to control her image by censoring disagreeable portrayals. It also involves a recognition that the First Amendment cannot permit anyone who cries "artist" to have carte blanche when it comes to naming and advertising his works.

(ctations and footnotes omitted). Perhaps natural embarrassment explains why 2Live Crew is not even cited in the Sixth Circuit's Parks opinion, even though portions of 2Live Crew are directly on point and would have made for a substantially shorter opinion in Parks.

   In any event, this action (or, more properly, inaction) by the Supreme Court has no legal weight whatsoever. The article, by refusing to so note, implies that there is some significance to the refusal to grant certiorari. All that refusal to grant certiorari means is that the Supreme Court is not convinced that it needs to decide a particular case, whether because the legal arguments are not sufficiently developed, the facts are sufficiently unclear, or even that six justices had heartburn that morning and voted to deny cert. on everything to get the meeting over (it ordinarily takes four of the nine justices' votes at their closed Friday morning conferences to grant certiorari).

   The reflexive irony comes from the article itself, which by quoting the most "offensive" part of the "repulsive trash" commits exactly the conduct complained of by Ms. Parks. In any event, the decisions actually mean much less than they seem to. They mean only that, as the Sixth Circuit noted, a reasonable juror could (not would) find that the song improperly appropriated and damaged her name, even aside from legitimate First Amendment concerns, and requires binding the matter over for trial. Frankly, the chances of that actually happening, and then being upheld on appeal, approach those of the Bush Administration naming me to the federal bench. Nonetheless, somebody somewhere is going to claim that the refusal to grant cert. and/or the Sixth Circuit's opinion itself (which is binding only in Michigan, Ohio, Kentucky, and Tennessee in any event) means that nobody can refer to a celebrity in a song in a disparaging way.

   We won't get into whether the title of this entry is another reflexive irony. We all need more caffeine before considering such an important issue.