         Case: 15-10880   Date Filed: 01/04/2016   Page: 1 of 15


                                                                   [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    _________________________

                           No. 15-10880
                    _________________________

              D.C. Docket No. 2:13-cv-00817-WKW-WC



ROSA AND RAYMOND PARKS INSTITUTE
FOR SELF DEVELOPMENT,


                                                    Plaintiff-Appellant,

                                versus


TARGET CORPORATION,

                                                    Defendant-Appellee.


                    __________________________

              Appeal from the United States District Court
                  for the Middle District of Alabama
                   __________________________

                           (January 4, 2016)
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Before ROSENBAUM, JULIE CARNES, and DUBINA, Circuit Judges.
ROSENBAUM, Circuit Judge:

      It was December 1, 1955. Although more than a year had passed since the

Supreme Court issued Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.

Ct. 686 (1954), invalidating Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138

(1896), and its separate-but-equal doctrine, change was slow to arrive in Alabama.

      Rosa Parks had had enough. After a long day of work, she boarded the bus

in downtown Montgomery and took a seat. 1 Once the bus filled up, some white

men boarded and could find no seats. Id. at 83. So the bus driver demanded that

Parks and some other African-Americans give their seats to the white men. Id.

      Though the other passengers yielded, Parks refused. Id. In later years, she

explained, “[W]hen that white driver stepped back toward us, when he waved his

hand and ordered us up and out of our seats, I felt a determination to cover my

body like a quilt on a winter night.” Donnie Williams & Wayne Greenhaw, THE

THUNDER   OF   ANGELS: THE MONTGOMERY BUS BOYCOTT             AND THE     PEOPLE WHO

BROKE THE BACK OF JIM CROW 48 (Chicago Rev. Press 2005). Upon seeing Parks

continuing to sit, the bus driver persisted, asking Parks if she was going to stand.

Juan Williams, EYES ON THE PRIZE: AMERICA’S CIVIL RIGHTS YEARS, 1954-1965

66 (Penguin Books 1987).


      1
      Interview by Sidney Rogers with Rosa Parks (Apr. 1956), in DAYBREAK OF FREEDOM:
THE MONTGOMERY BUS BOYCOTT 82 (Stewart Burns ed., 1997).
                                           2
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       Parks said, “No, I’m not.” Id. And when the bus driver threatened to call

the police, Parks calmly answered, “You may do that.” Id. The police arrived and

arrested Parks for refusing to relinquish her bus seat to a white passenger in

accordance with Montgomery city law. Id. at 87.

       Parks’s courageous act inspired the Montgomery Bus Boycott and served as

the impetus for the modern Civil Rights Movement, transforming the nation. 2 Id.

In response to Parks’s arrest, for 381 days, 42,000 African-Americans boycotted

Montgomery buses, until the United States Supreme Court held the Montgomery

segregation law unconstitutional and ordered desegregation of the buses. Act of

May 4, 1999, Pub. L. No. 106-26, § 1 (4), (5), 113 Stat. 50, 50 (awarding Parks the

Congressional gold medal).

       Parks’s refusal to cede ground in the face of continued injustice has made

her among the most revered heroines of our national story; her role in American

history cannot be over-emphasized.           Indeed, the United States Congress has

recognized Parks as the “first lady of civil rights” and the “mother of the freedom

movement,” and it has credited Parks with “ignit[ing] the most significant social

movement in the history of the United States.” Id. at § 1(2).



       2
        So significant to the Civil Rights Movement were Parks’s actions of December 1, 1955,
that even the actual bus on which Parks made her famous stand, Bus No. 2875, has been
preserved as a museum exhibit at the Henry Ford Museum. See Rosa Parks Bus, THE HENRY
FORD MUSEUM http://www.thehenryford.org/exhibits/rosaparks/faq.asp (last visited Dec. 22,
2015).
                                               3
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       So it is not surprising that authors would write about Parks’s story and artists

would celebrate it with their works. The commemoration and dissemination of

Parks’s journey continues to entrench and embolden our pursuit of justice. And it

is in the general public interest to relentlessly preserve, spotlight, and recount the

story of Rosa Parks and the Civil Rights Movement—even when that interest

allegedly conflicts with an individual right of publicity.

                                                  I.

       The Rosa and Raymond Parks Institute for Self Development (the

“Institute”) is a Michigan 501(c)(3) non-profit corporation 3 that owns the name

and likeness of the late Rosa Parks 4 pursuant to a right-of-publicity assignment.

Target Corporation (“Target”), a national retail corporation headquartered in

Minneapolis, Minnesota, operates more than 1,800 retail stores across the United

States.



       3
         A 501(c)(3) non-profit corporation refers to a corporation “organized and operated
exclusively for religious, charitable, scientific, testing for public safety, literary, or educational
purpose, or to foster national or international amateur sports competition.” 26 U.S.C. § 501(c)(3)
(2014).
       4
          Parks passed away in 2005. Debbi Wilgoren & Theola S. Labbe, An Overflowing
Tribute to an Icon, WASHINGTON POST, Nov. 1, 2005, at 1, http://www.washingtonpost.com/wp-
dyn/content/article/2005/10/31/AR2005103100370.html. Her public importance was as great
then as at any prior time. Parks’s body lay in state in the Capitol Rotunda, and lines “snaked for
blocks around the complex and across the Mall” for people to pay their final respects to Parks.
Id. at 2. A public memorial service followed at the Metropolitan AME Church in Washington,
D.C. Id. Among others, the United States Secretaries of Defense, Homeland Security, and
Labor, as well as the Senate Majority and Minority Leaders, attended. Id. President George W.
Bush ordered flags at federal buildings to be flown at half-staff on the day of Parks’s funeral. Id.
at 1.
                                                 4
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       Target offered seven books about Parks for retail: (1) Rosa Parks: My Story,

by Rosa Parks and Jim Haskins 5; (2) Who Was Rosa Parks?, by Yona Zeldis

McDonough; (3) Rosa Parks: Childhood of Famous Americans, by Kathleen

Kudlinski; (4) Rosa Parks, by Eloise Greenfield; (5) A Picture Book of Rosa Parks,

by David A. Adler6; (6) The Rebellious Life of Mrs. Rosa Parks, by Jeanne

Theoharis 7; and (7) The Story of Rosa Parks, by Patricia A. Pingry. 8 Target also

sold the American television movie, The Rosa Parks Story,9 and a collage-styled



       5
           This book, obviously, was an autobiography.
       6
           This book was a part of a series called “Picture Book Biographies.”
See http://www.amazon.com/Picture-Book-Parks-Biographies-Biography/dp/082341177X (last
visited Dec. 22, 2015).
       7
           Melissa Harris-Perry, the host of MSNBC’s Melissa Harris-Perry, said that this book
“will undoubtedly be hailed as one of the most important scholarly contributions to civil rights
history ever written. . . . I can’t wait to assign this book in every class I teach.” Review by
Melissa Harris-Perry, http://www.amazon.com/Rebellious-Life-Mrs-Rosa-Parks/dp/0807033324
(last visited Dec. 22, 2015). Henry Louis Gates Jr. agreed, “Theoharis brings all of her talents as
a political scientist and historian of the civil rights movement to bear on this illuminating
biography of the great Rosa Parks.” Id.
       8
         Who Was Rosa Parks?, Rosa Parks: Childhood of Famous Americans, Rosa Parks, and
The Story of Rosa Parks were all books directed towards sparking the interests of children, as the
primary audience, in Parks’s role in the modern Civil Rights Movement.                        See
http://www.amazon.com/Rosa-Parks-Yona-Zeldis-McDonough/dp/0448454424 (last visited Dec.
22, 2015); http://www.amazon.com/Rosa-Parks-Childhood-Famous-Americans/dp/0689839251
(last visited Dec. 22, 2015); http://www.amazon.com/Rosa-Parks-Trophy-Chapter-
Book/dp/0064420256 (last visited Dec. 22, 2015); http://www.amazon.com/Story-Rosa-Parks-
Patricia-Pingry/dp/0824966872 (last visited Dec. 22, 2015).
       9
           Angela Bassett played the title role. See http://www.imdb.com/title/tt0293562/ (last
visited Dec. 22, 2015). Dexter Scott King, the son of Dr. Martin Luther King, Jr., produced the
film     and     played    the    role     of    his   father.        See    id.;   see    also
http://kingencyclopedia.stanford.edu/encyclopedia/encyclopedia/enc_king_dexter_scott_1961/
(last visited Dec. 22, 2015). Dexter King was named after the Dexter Avenue Baptist Church,
the        church       where      Dr.        King      held      his      first      pastorate.
http://kingencyclopedia.stanford.edu/encyclopedia/encyclopedia/enc_king_dexter_scott_1961/;
http://www.dexterkingmemorial.org/about/ (last visited Dec. 22, 2015). Dr. King was serving as
                                                5
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plaque that included, among other items, a picture of Parks, alongside Dr. Martin

Luther King, Jr. 10

       The plaque was emblazoned with the title, “Civil Rights.” Besides Parks’s

photograph and a statement of the years that she lived, the plaque included the

word, “CHANGE,” and it contained a photograph and diagram of the bus where

Parks threw down the Civil Rights Movement gauntlet, as well as a picture of the

Congressional Gold Medal that Parks was later awarded.                          Overlaid on the

photograph of Parks and Dr. King was the statement, “People always say that I


the pastor of the Dexter Avenue Baptist Church when Parks refused to give up her seat on the
bus. He was instrumental in the Montgomery Bus Boycott. http://www.thekingcenter.org/bus-
boycott-sparks-movement (last visited Dec. 22, 2015).
       10
            Below is a picture of the plaque in question:




During oral argument, counsel for the Institute asserted that Target also sold another Parks
plaque. The only other plaque referred to in the record was sold under the same merchandise
identification label, “Created Equal,” but it did not depict Parks. Instead, it contained pictures of
Dr. King and other images related to the Civil Rights Movement. The plaques were packaged
and sold simultaneously.
                                                  6
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didn’t give up my seat because I was tired, but that isn’t true. I was not tired

physically. . . [.] I was not old . . . [.] I was forty two. No, the only tired I was,

was tired of giving in.”

      Stephanie Workman Marrott, the professional artist who designed the

plaque, explained that she created it to “tell[] a story about civil rights in America

. . . [to] describe important aspects of American history and convey a message

about those events.” She added that her decision to “include[] the name and image

of Rosa Parks, as well as an image of the Montgomery bus and the word

‘CHANGE,’ was in order to tell the story of Rosa Parks and the civil rights

movement in a way that would convey an inspirational message about standing up

for what you believe is right and what you believe in.”

      Six of the books, the movie, and the plaque became available for sale on

Target’s website or in some of its retail stores before November 2011. In 2013, the

Theoharis book was added to Target’s online retail. There is no evidence in the

record that any of the products say “Target” on them or are otherwise identifiably

affiliated with Target in any way other than that Target offered them for sale.

      On November 6, 2013, the Institute filed the underlying complaint in the

Middle District of Alabama. Invoking diversity jurisdiction, the Institute alleged

claims for unjust enrichment, right of publicity, and misappropriation under




                                          7
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Michigan common law for Target’s sales of all items using the name and likeness

of Rosa Parks.

       Generally, the Institute complained that, by selling the products identified

above, Target had unfairly and “without [the Institute’s] prior knowledge, or

consent, used [Parks’s] name, likeness, and image to sell products and did promote

and sell products using [Parks’s] name, likeness, and image for [Target’s] own

commercial advantage.” After Target sought summary judgment, the district court

dismissed the complaint, and this appeal followed. We now affirm the district

court’s dismissal of the Institute’s complaint.

                                             II.

       The “starting point . . . in all cases in which subject-matter jurisdiction is

premised on diversity of citizenship[] is Erie Railroad Co. v. Tompkins, 304 U.S.

64, 58 S. Ct. 817 (1938).” Ellis v. Great Sw. Corp., 646 F.2d 1099, 1102-03 (5th

Cir. Unit A June 1981).11 Because no federal common law exists, under Erie, a

federal court sitting in diversity applies the substantive law of the state in which it

sits except in cases governed by federal law or the United States Constitution. Id.

Here, Alabama’s choice-of-law rules control and hold that the procedural law of

the forum state is applied, while the law of the state in which the injury occurred



       11
          The decisions of the United States Court of Appeals for the Fifth Circuit prior to
October 1, 1981, are binding as precedent in the Eleventh Circuit. Bonner v. City of Prichard,
Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
                                                8
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governs the substantive rights of the case. Fitts v. Minn. Min. & Mfg. Co., 581 So.

2d 819, 820 (Ala. 1991). Accordingly, in this case we apply the procedural rules

of Alabama and the substantive law of Michigan. 12

       In consulting Michigan’s laws, we first consider rulings of Michigan’s

Supreme Court. See Bailey v. S. Pac. Transp. Co., 613 F.2d 1385, 1388 (5th Cir.),

cert. denied, 449 U.S. 836 (1980). Where the highest court in the state has

rendered no decisions on point, however, we must follow the opinions of

Michigan’s intermediate courts, unless we are “convinced that the highest court

would decide otherwise.” Id. (citing Comm’r v. Bosch, 387 U.S. 456, 465 (1967)).

       In Michigan, the common-law right of privacy protects against four types of

invasions of privacy:

               1. Intrusion upon the plaintiff’s seclusion or solitude, or
                  into his private affairs.
               2. Public disclosure of embarrassing private facts about
                  the plaintiff.
               3. Publicity which places the plaintiff in a false light in
                  the public eye.
               4. Appropriation for the defendant’s advantage, of the
                  plaintiff’s name or likeness.

       12
          It appears that Alabama’s statute of limitations would preclude a claim based on all but
one of the books at issue. Ala. Code § 6-2-38(l) (1975). Alabama typically considers statutes of
limitations procedural, Randolph v. Tenn. Valley Auth., 792 F. Supp. 1221, 1222 (N.D. Ala.
1992), and generally applies what is known as the single-publication rule to tort claims. See
Precision Gear Co. v. Cont’l Motors, Inc., 135 So. 3d 953, 957 (Ala. 2013); Cofer v. Ensor, 473
So. 2d 984, 987 (Ala. 1985). Although Alabama courts have not yet addressed whether they
would apply the single-publication rule to common-law right-of-publicity claims, we are inclined
to believe that they would. See, e.g., Poff v. Hayes, 763 So. 2d 234, 242 (Ala. 2000). But
because Michigan’s well-established qualified privilege for matters of public concern soundly
resolves this case, we do not address this specific issue.
                                                  9
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Tobin v. Mich. Civ. Serv. Comm’n, 331 N.W.2d 184, 189 (Mich. 1982) (quoting

Beaumont v. Brown, 257 N.W.2d 522, 533 (Mich. 1977), overruled on other

grounds by Bradley v. Saranac Cmty. Sch. Bd. of Educ., 565 N.W.2d 285, 302

(Mich. 1997)). The last category of invasion of privacy—misappropriation of a

person’s name or likeness—is commonly referred to as a violation of the “right of

publicity.” Ruffin-Steinback v. dePasse, 82 F. Supp. 2d 723, 728-29 (E.D. Mich.

2000) (applying Michigan law), aff’d, 267 F.3d 457 (6th Cir. 2001).

      Michigan’s common-law right of publicity “is founded upon ‘the interest of

the individual in the exclusive use of his own identity, in so far as it is represented

by his name or likeness, and in so far as the use may be of benefit to him or to

others.’” Battaglieri v. Mackinac Ctr. for Pub. Pol’y, 680 N.W.2d 915, 919 (Mich.

Ct. App. 2004) (quoting RESTATEMENT SECOND OF TORTS, § 652C cmt. a (1977)).

This particular privacy right guards against the appropriation of “the commercial

value of a person’s identity by using without consent the person’s name, likeness,

or other indicia of identity for the purpose of trade.” RESTATEMENT (THIRD)         OF

UNFAIR COMPETITION § 46 (1995).

      Privacy rights, however, are not absolute. Earp v. City of Detroit, 167

N.W.2d 841, 845 (Mich. Ct. App. 1969). The Michigan Constitution guarantees

that “[e]very person may freely speak, write, express and publish his views on all

subjects, being responsible for the abuse of such right; and no law shall be enacted

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to restrain or abridge the liberty of speech or of the press.” MICH. CONST. of 1963,

art. I, § 5.13 Premised on this state constitutional right, Michigan courts have long

recognized that individual rights must yield to the qualified privilege to

communicate on matters of public interest. 14 Lawrence v. Fox, 97 N.W.2d 719,

721 (Mich. 1959); Dienes v. Associated Newspapers, Inc., 358 N.W.2d 562, 565

(Mich. Ct. App. 1984).

       The “qualified privilege to report on matters in the public interest is deeply

rooted in Michigan jurisprudence,” Rouch v. Enquirer & News of Battle Creek, 398

N.W.2d 245, 253 (Mich. 1986), and, where the facts are undisputed, presents a

question of law. Tumbarella v. Kroger Co., 271 N.W.2d 284, 289 (Mich. Ct. App.

1978). The privilege attaches to matters of general public interest, Peisner v.

Detroit Free Press, Inc., 266 N.W.2d 693, 697 (Mich. Ct. App. 1978), and

“extends to all communications made bona fide upon any subject-matter” where


       13
          The protection derived from this provision of the Michigan Constitution provides the
necessary shield for the works at issue and we need not address whether the First Amendment
would also serve to protect the works. See United States v. Charles, 722 F.3d 1319, 1332-35
(11th Cir. 2013) (Marcus, J., specially concurring) (relying on the “long-standing prudential
policy ‘that we ought not to pass on questions of constitutionality . . . unless such adjudication is
unavoidable”) (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct.
152, 154 (1994)). We nonetheless recognize and appreciate the efforts of amici in briefing the
First Amendment issues.
       14
          In Michigan, matters concerning freedom of speech may be shielded by an absolute or
a qualified privilege. Raymond v. Croll, 206 N.W. 556, 557-58 (Mich. 1925). The absolute
privilege is a narrow exception not applicable in the instant case, covering matters such as
judicial proceedings, Sanders v. Leeson Air Conditioning Corp., 362 Mich. 692, 695, 108
N.W.2d 761, 762 (Mich. 1961), proceedings of legislative bodies, and communications by
military and naval officers. Froling v. Carpenter, 203 Mich. App. 368, 371, 512 N.W.2d 6, 8
(Mich. Ct. App. 1993).
                                              11
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the party communicating has an interest or a duty to a person having a

corresponding interest or duty. Bacon v. Mich. Cent. R. Co., 33 N.W. 181, 183

(Mich. 1887). This defense also “embraces cases where the duty is not a legal one,

but where it is of a moral or social character of imperfect obligation.” Id.15

       The privilege afforded is not a constant but varies with the situation and the

importance of the social issues at stake. Peisner, 266 N.W.2d at 697. In cases

concerning social issues, Michigan courts and courts applying Michigan law have

found the qualified privilege to extend to issues concerning even general topics of

public concern. See, e.g., Gaynes v. Allen, 339 N.W.2d 678, 681 (Mich. Ct. App.

1983) (public interest in matters of healthcare); Peisner, 266 N.W.2d at 698 (public

interest in the administration of justice); Weeren v. Evening News Ass’n, 138

N.W.2d 526, 527 (Mich. Ct. App. 1965) (public interest in the broadcast of an

historical documentary), rev’d on other grounds, 152 N.W.2d 676 (Mich. 1967);

Bichler, 745 F.2d at 1011 (public interest in the closing of the only dinner theater


       15
           Although most often used as a shield to liability in defamation and libel cases,
Michigan’s absolute and qualified privileges have been applied to preclude liability for claims
premised on other torts. See, e.g., Meyer v. Hubbell, 324 N.W.2d 139, 144 (Mich. Ct. App.
1982) (applying absolute privilege to preclude claim of intentional infliction of emotional
distress and tortious interference with economic relations); Bichler v. Union Bank & Trust Co. of
Grand Rapids, 745 F.2d 1006, 1011 (6th Cir. 1984) (en banc) (applying Michigan law and the
qualified privilege to preclude right-of-privacy claim). The Restatement of the Law also
recognizes that the same qualified privilege applicable to defamation and libel claims would
apply with equal force to invasion-of-privacy claims. RESTATEMENT (SECOND) OF TORTS §
652G cmt. a (1977). (“Under any circumstances that would give rise to a conditional privilege
for the publication of defamation there is likewise a conditional privilege for the invasion of
privacy.”); Beaumont v. Brown, 336 N.W.2d 26, 27 (Mich. Ct. App. 1983) (citing RESTATEMENT
(SECOND) OF TORTS § 652G).
                                               12
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in Western Michigan); Schultz v. Newsweek, Inc., 481 F. Supp. 881, 884 (E.D.

Mich. 1979) (public interest in liquor-license application as a matter of public

function).

      Of course, it is 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. And it is uncontested that five of the six books, including an

autobiographical book co-authored by Parks herself, and the movie are all bona

fide works of non-fiction discussing Parks and her role in the Civil Rights

Movement. As for the sixth book, Rosa Parks: Childhood of Famous Americans,

by Kathleen Kudlinski, it is a fictionalized biography meant to introduce children

to the importance of Parks, so it, too, concerns a matter of public interest.

      Similarly, the plaque depicts images and mentions dates and statements

related to Parks and the Civil Rights Movement, in an effort to convey a message

concerning Parks, her courage, and the results of her strength. Indeed, all of the

works in question “communicate[] information, express[] opinion[s], recite[]

grievances, [and] protest[] claimed abuses, . . . on behalf of a movement whose

existence and objectives” continue to be “of the highest public interest and




                                          13
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concern.” New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S. Ct. 710, 718,

11 L. Ed. 2d 686 (1964) (discussing the Civil Rights Movement).16

       Although the qualified privilege is not invincible, Lins v. Evening News

Ass’n, 342 N.W.2d 573, 581 (Mich. Ct. App. 1983), the Institute has not articulated

any argument as to why Michigan’s qualified privilege for matters of public

concern would not apply to these works, in light of the conspicuous historical

importance of Rosa Parks. Nor can we conceive of any.

       The use of Rosa Parks’s name and likeness in the books, movie, and plaque

is necessary to chronicling and discussing the history of the Civil Rights

Movement—matters quintessentially embraced and protected by Michigan’s

qualified privilege. Indeed, it is difficult to conceive of a discussion of the Civil

Rights Movement without reference to Parks and her role in it. And Michigan law

does not make discussion of these topics of public concern contingent on paying a

fee. As a result, all six books, the movie, and the plaque find protection in

Michigan’s qualified privilege protecting matters of public interest. 17


       16
          Michigan courts have been clear that “[t]he rights to free speech under the Michigan
and federal constitutions are coterminous . . . [and t]hus, federal authority construing the First
Amendment may be used in construing the Michigan Constitution’s free speech guarantee.”
Burns v. City of Detroit, 660 N.W.2d 85, 93 (Mich. Ct. App. 2002).
       17
           The district court held that the Institute’s claims of misappropriation and unjust
enrichment were derivative of its right-of-publicity claim. The Institute’s misappropriation claim
is the same as its claim based on the right of publicity and is thus duplicative. See Carson v.
Here’s Johnny Portable Toilets, Inc., 698 F.3d 831, 834 (6th Cir. 1983) (applying Michigan state
law) (stating that misappropriation of likeness “has become known as ‘the right of publicity’”).
Because we find that Target did not unlawfully use Parks’s name and likeness, any acquired
                                                14
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                                            V.

       In short, the district court did not err in dismissing the Institute’s complaint.

The district court’s order is AFFIRMED.




benefit would not have been unjust, so the Institute’s common-law claim of unjust enrichment
necessarily fails. Tkachik v. Mandeville, 790 N.W.2d 260, 266 (2010).
                                                15
