Rosa Parks v. Laface Records

OPINION

This is a dispute over the name of a song. Rosa Parks is a civil rights icon who first gained prominence during the Montgomery, Alabama bus boycott in 1955. She brings suit against LaFace Records, a record producer, and OutKast, a “rap” (or “hip-hop”) music duo, as well as several other named affiliates, for using her name as the title of their song, Rosa Parks. Parks contends that Defendants’ use of her name constitutes false advertising under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and intrudes on her common law right of publicity under Michigan state law. Defendants argue that they are entitled to summary judgment because Parks has failed to show any violation of the Lanham Act or her right of publicity. Defendants further argue that, even if she has shown such a violation, their First Amendment freedom of artistic expression should be a defense as a matter of law to each of these claims. Parks also contends that Defendants’ conduct renders them liable under Michigan law for defamation and tortious interference with a business rela *442 tionship; Defendants have also denied liability with respect to these claims.

Parks brought this action in a Michigan state court. Defendants subsequently removed the case to the District Court for the Eastern District of Michigan. Following cross-motions for summary judgment, the district court denied Parks’ motion for summary judgment and granted summary judgment for Defendants. Parks now appeals the grant of summary judgment for Defendants.

For the reasons hereafter set forth, we believe that, with respect to Rosa Parks’ claims under the Lanham Act and under the common law right of publicity, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We therefore conclude that the district court erred in granting Defendants’ motion for summary judgment on those claims. We conclude, however, that the district court properly granted summary judgment in favor of Defendants on Rosa Parks’ state law claims of defamation and tortious interference with a business relationship.

I. BACKGROUND

A. Facts

Rosa Parks is an historical figure who first gained prominence as a symbol of the civil rights movement in the United States during the 1950’s and 1960’s. In 1955, while riding in the front of a segregated bus in Montgomery, Alabama, she refused to yield her seat to a white passenger and move to the back of the bus as blacks were required to do by the then-existing laws requiring segregation of the races. A 381-day bus boycott in Montgomery flowed from that one event, which eventually became a catalyst for organized boycotts, sit-ins, and demonstrations all across the South. Her single act of defiance has garnered her numerous public accolades and awards, and she has used that celebrity status to promote various civil and human rights causes as well as television programs and books inspired by her life story. She has also approved a collection of gospel recordings by various artists entitled Verity Records Presents: A Tribute to Mrs. Rosa Parks (the “Tribute ” album), released in 1995.

Defendants are OutKast, comprised of recording artists André “Dré” Benjamin and Antwan “Big Boi” Patton; their record producers, LaFace, founded by and named after Antonio “L.A.” Reid and Kenny “Babyface” Edmonds; 1 and LaFace’s record distributors, Arista Records and BMG Entertainment (collectively “Defendants”). In September 1998, Defendants released the album Aquemini. The album’s first single release was a song titled Rosa Parks, described as a “hit single” by a sticker on the album. The same sticker that contained the name Rosa Parks also contained a Parental Advisory warning of “explicit content.” J.A. at 60. Because, as later discussed, the critical issue in this case is a determination of the artistic relevance of the title, Rosa Parks, to the content of the song, the lyrics obviously must be considered in their entirety. They are as follows:

(Hook)

Ah ha, hush that fuss

Everybody move to the back of the bus

Do you wanna bump and slump with us

*443 We the type of people make the club get crunk

Verse 1: (Big Boi)

Many a day has passed, the night has gone by

But still I find the time to put that bump off in your eye

Total chaos, for these playas, thought we was absent

We talán another route to represent the Dungeon Family

Like Great Day, me and my nigga decide to take the back way We stabbing every city then we headed to that bat cave

A-T-L, Georgia, what we do for ya Bull doggin hoes like them Georgetown Hoyas

Boy you sounding silly, thank my Brougham aint sittin pretty Doing doughnuts round you suckas like then circles around titties Damn we the committee gone burn it down

But us gone bust you in the mouth with the chorus now

(Hook)

Verse 2: (André)

I met a gypsy and she hipped me to some life game

To stimulate then activate the left and right brain

Said baby boy you only funky as your last cut

You focus on the past your ass’ll be a has what

Thats one to live by or either that one to die to

I try to just throw it at you determine your own adventure

Andre, got to her station here’s my destination

She got off the bus, the conversation lingered in my head for hours

Took a shower kinda sour cause my favorite group ain’t comin with it

But I’m witeha you cause you probably goin through it anyway

But anyhow when in doubt went on out and bought it

Cause I thought it would be jammin but examine all the flawsky-wawsky

Awfully, it’s sad and it’s costly, but that’s all she wrote

And I hope I never have to float in that boat

Up shit creek it’s weak is the last quote

That I want to hear when I’m goin down when all’s said and done

And we got a new joe in town

When the record player get to skippin and slowin down

All yawl can say is them niggas earned that crown but until then ...

(Hook)

(Harmonica Solo)

(Hook til fade)

JA. at 521.

B. Procedural History

Parks sued Defendants in the Wayne County Circuit Court of Michigan alleging, inter alia, that Defendants’ unauthorized use of her name infringes on her right to publicity, defames her character, and interferes with an ongoing business relationship. Defendants removed this case to the District Court for the Eastern District of Michigan. Parks thereafter filed an amended complaint that reiterated her state law claims and added a false advertising claim under § 43(a) of the Lanham Act.

*444 The parties entered into a stipulation of the facts 2 (“Stipulated Facts”) and filed cross-motions for summary judgment. Applying Rogers v. Grimaldi, 875 F.2d 994 (2d Cir.1989), the district court concluded that the First Amendment, as a matter of law, was a defense to Parks’ Lanham Act and right of publicity claims. See Parks v. LaFace Records, 76 F.Supp.2d 775, 780-84 (E.D.Mich.1999). Specifically, the court found that (1) an “obvious relationship” between the content of the song and its title Rosa Parks renders the right of publicity inapplicable as a matter of law, id. at 780; (2) with respect to the Lanham Act, there was no explicit representation that the work was endorsed by Parks, id. at 783; (3) the prominent appearance of Out-Kast’s name on their album cured any likelihood of consumer confusion between Plaintiff’s and Defendants’ albums as a matter of law, id. at 784; and (4) even if there were some likelihood of consumer confusion, such risk was outweighed by the First Amendment interests of the Defendants, id. at 783. Because, in the opinion of the district court, Parks had failed to raise any genuine issue of material fact to overcome Defendants’ First Amendment defense or otherwise support her claims under the Lanham Act and her right of publicity, the district court denied Parks’ motion for summary judgment and granted summary judgment for Defendants. Id. at 788-89. The district court also granted summary judgment in favor of Defendants on Rosa Parks’ claims of defamation and tortious interference with a business relationship. This appeal followed.

II. DISCUSSION

A. Standard of Review

We review the district court’s grant of summary judgment de novo. See Sperle v. Michigan Dep’t of Corr., 297 F.3d 483, 490 (6th Cir.2002). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering such a motion, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

The fact that the parties have filed cross-motions for summary judgment does not mean, of course, that summary judgment for one side or the other is necessarily appropriate. “When parties file cross-motions for summary judgment, ‘the mak *445 ing of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.’ ” B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d 587, 593 (6th Cir.2001) (citing 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.1998)).

B. The Lanham Act

Section 43(a) of the Lanham Act creates a civil cause of action against any person who identifies his or her product in such a way as to likely cause confusion among consumers or to cause consumers to make a mistake or to deceive consumers as to association of the producer of the product with another person or regarding the origin of the product or the sponsorship or approval of the product by another person. The language of § 43(a) is broad. It provides:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be hable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a).

Plaintiffs often invoke § 43(a) to protect intehectual property rights in “marks,” or brand names, of ordinary merchandise, such as apparel, see, e.g., A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 206 (3d Cir.2000) (suit by manufacturer of “Miraclesuit” swimwear against manufacturer of “The Miracle Bra” swimwear), or of services, such as mortgage companies, see Platinum Home Mortgage Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 725 (7th Cir.1998) (suit between mortgage service companies using the “Platinum” name).

However, the scope of § 43(a) extends beyond disputes between producers of commercial products and their competitors. It also permits celebrities to vindicate property rights in their identities against allegedly misleading commercial use by others. See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1110 (9th Cir.1992) (celebrity suit against snack manufacturer for unauthorized use of his distinctive voice in a commercial); Allen v. Nat’l Video, Inc., 610 F.Supp. 612, 624-25 (S.D.N.Y. 1985) (celebrity suit against a video retailer for use of a celebrity look-alike in its advertisements); Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 626 (6th Cir.2000) (actor sued toy company for creating an action figure named after one of his movie characters); Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir.1996) (professional basketball player sued car manufacturer for using his birth name to sell cars). Celebrities have standing to sue under § 43(a) because they possess an economic interest in their identities akin to that of a traditional trademark holder. See Waits, 978 F.2d at 1110. See also 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 28:15 (4th ed.2002)(diseussing cases).

In order to prevail on a false advertising claim under § 43(a), a celebri *446 ty must show that use of his or her name is likely to cause confusion among consumers as to the “affiliation, connection, or association” between the celebrity and the defendant’s goods or services or as to the celebrity’s participation in the “origin, sponsorship, or approval” of the defendant’s goods or services. See 15 U.S.C. § 1125(a)(1)(A); Landham, 227 F.3d at 626; Wendt v. Host Int'l Inc., 125 F.3d 806, 812 (9th Cir.1997); Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 966 (10th Cir.1996); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1399 (9th Cir.1992). Consumer confusion occurs when “consumers ... believe that the products or services offered by the parties are affiliated in some way,” Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931 F.2d 1100, 1107 (6th Cir.1991), or “when consumers make an incorrect mental association between the involved commercial products or their producers,” Cardtoons, 95 F.3d at 966 (quoting San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 564, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (Brennan, J., dissenting)). A “likelihood” means a “probability” rather than a “possibility” of confusion. See Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 193 (5th Cir.1998); Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1189 (6th Cir. 1988) (finding a “clear likelihood of confusion” because it was “highly probable” that a purchaser would believe a car wax was affiliated with another manufacturer); 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:3 (4th ed.2002)(citing cases). But cf. Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 284 (6th Cir.1997) (noting that a plaintiff need only show “a sufficient potential of confusion, not actual confusion”).

Parks contends that Defendants have violated the Lanham Act because the Rosa Parks title misleads consumers into believing that the song is about her or that she is affiliated with the Defendants, or has sponsored or approved the Rosa Parks song and the Aquemini album. She argues that the risk of confusion is enhanced by the fact that her authorized Tribute album is in the marketplace alongside Defendants’ album featuring the Rosa Parks single. As additional evidence for her claim, Parks points to Defendants’ concession that they have used the Rosa Parks title to advertise and promote both the song and the Aquemini album. She also supplies twenty-one affidavits from consumers affirming that they either believed Defendants’ song was about Parks or was connected to the Tribute album authorized by her.

Defendants respond that Parks’ Lanham Act claim must fail for two reasons. First, they claim that Parks does not possess a trademark right in her name and Defendants have not made a trademark use of her name, as allegedly required for a cause of action under the Lanham Act. Second, they contend that even if use of the title posed some risk of consumer confusion, the risk is outweighed by Defendants’ First Amendment right to free expression.

1. Trademark Right In and Trademark Use of Parks’ Name

Citing Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Productions, 134 F.3d 749, 756 (6th Cir.1998), Defendants contend that Parks’ § 43(a) claim must fail because they have made no trademark use of her name. However, Defendants misconceive the legal basis of a Lanham Act claim. It is not necessary for them to make a “trademark” use of Rosa Parks’ name in order for her to have a cause of action for false advertising under § 43(a) of the Lanham Act.

*447 Rosa Parks clearly has a property interest in her name akin to that of a person holding a trademark. It is beyond question that Parks is a celebrity. 3 The parties have stipulated to her international fame and to her prior authorization of television programs and books. We have already established, supra, that courts routinely recognize a property right in celebrity identity akin to that of a trademark holder under § 43(a). See, e.g., Landham, 227 F.3d at 626; Waits, 978 F.2d at 1110; Allen, 610 F.Supp. at 624-25. We find Parks’ prior commercial activities and international recognition as a symbol of the civil rights movement endow her with a trademark interest in her name the same as if she were a famous actor or musician.

Therefore, even though Rosa Parks’ name might not be eligible for registration as a trademark, and even though Defendants were not selling Rosa Parks-brand CD’s, a viable cause of action also exists under § 43(a) if consumers falsely believed that Rosa Parks had sponsored or approved the song, or was somehow affiliated with the song or the album. We turn then to Defendants’ second argument, that even if Parks could establish some likelihood of confusion, the First Amendment protects Defendants’ choice of title.

2. The First Amendment Defense— Three Approaches

Defendants allege that even if Parks’ evidence demonstrates some likelihood of consumer confusion regarding their song and album, their First Amendment right of artistic expression trumps that concern. Defendants make an arguable point. From ancient times, music has been a means by which people express ideas. As such, music is firmly ensconced within the protections of the First Amendment. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (stating that paintings, music and poetry are “unquestionably shielded” by the First Amendment); Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“Music, as a form of expression and communication, is protected under the First Amendment.”). However, the First Amendment cannot permit anyone who cries “artist” to have carte blanche when it comes to naming and advertising his or her works, art though it may be. As the Second Circuit sagely observed, “[t]he purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source [or endorsement] of the product.” Rogers, 875 F.2d at 997; see also Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, Inc., 886 F.2d 490, 493 (2d Cir.l989)(“Trademark protection is not lost simply because the allegedly infringing use is in connection with a work of artistic expression.” (citation omitted)). Courts have adopted three approaches to balance First Amendment interests with the protections of the Lanham Act: (a) the “likelihood of confusion” test; (b) the “alternative avenues” test; and (c) the Rogers v. Grimaldi test. We will examine each one in turn.

a. Likelihood of Confusion Factors Used In Commercial Trademark Cases

One approach is to rely solely on the “likelihood of confusion” factors applied in other, more traditional, trademark cases. That is, we analyze: 1) the strength of the plaintiffs mark; 2) the relatedness of the goods; 3) the similarity *448 of the marks; 4) evidence of actual confusion; 5) the marketing channels used; 6) the likely degree of purchaser care; 7) the defendant’s intent in selecting the mark; and 8) the likelihood of expansion in the product lines of the parties. See Frisch’s Rests., Inc. v. Elby’s Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir.1982) (adopting the test from AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir.1979)); see also Polaroid Corp. v. Polarad Elees. Corp., 287 F.2d 492, 495 (2d Cir.1961) (creating a variant of the test). Based upon that evidence, we then decide if the plaintiff has raised a genuine issue of material fact as to the likelihood of consumer confusion. Under this approach, we do not pay special solicitude to an asserted First Amendment defense.

This approach has been inferred from the Ninth Circuit case, Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir.1997). See Films of Distinction, Inc. v. Allegro Film Prods., Inc., 12 F.Supp.2d 1068, 1078 (C.D.Cal. 1998) (“[I]t appears the Ninth Circuit will not adopt [a] .... test balancing trademark protections against the artistic interest in protecting literary titles.... Dr. Seuss strongly suggests that this ‘balancing’ has already been adequately accomplished by the statutory framework [of the Lanham Act].”). But see Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 901 (9th Cir.2002), cert. denied, — U.S.-, 123 S.Ct. 993, 154 L.Ed.2d 912 (2003) (distinguishing Dr. Seuss). The Tenth Circuit has obliquely endorsed this approach as well. See Cardtoons, 95 F.3d at 970 (suggesting the “likelihood of confusion” test “serve[s] to avoid First Amendment concerns” in trademark cases).

b.Alternative Avenues Test

A second approach is the “alternative avenues” test. This is the test urged upon us by Parks, and endorsed by a panel of the Eighth Circuit. Under the “alternative avenues” test, a title of an expressive work will not be protected from a false advertising claim if there are sufficient alternative means for an artist to convey his or her idea. See Mutual of Omaha Ins. Co. v. Novak, 836 F.2d 397, 402 (8th Cir.1987) (creator of parody tee-shirts not protected by First Amendment because he could still produce parody editorials in books, magazines, or film); Am. Dairy Queen Corp. v. New Line Prods., Inc., 35 F.Supp.2d 727, 734 (D.Minn.1998) (no First Amendment protection for an infringing movie title because there were other titles the producers could use); cf. Anheuser-Busch, Inc. v. Balducci Publ’ns, 28 F.3d 769, 776 (8th Cir.1994) (First Amendment protection not available to parodist because the confusing trademark use was “wholly unnecessary” to the parodist’s stated purpose).

c. Rogers v. Grimaldi Test

Finally, a third approach is the one developed by the Second Circuit in Rogers v. Grimaldi and adopted by the district court in this case. Under Rogers, a title will be protected unless it has “no artistic relevance” to the underlying work or, if there is artistic relevance, the title “explicitly misleads as to the source or the content of the work.” Rogers, 875 F.2d at 999. This test was explicitly adopted by the Fifth Circuit in Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 664-65 (5th Cir.2000), and by a panel of the Ninth Circuit in Mattel, 296 F.3d at 902. It was also adopted by a district court in the Third Circuit in Seale v. Gramercy Pictures, 949 F.Supp. 331, 339 (1996).

d. Analysis

We conclude that neither the first nor the second approach accords adequate *449 weight to the First Amendment interests in this ease. The first approach — unmodified application of the likelihood of confusion factors in trademark cases — gives no weight to First Amendment concerns. Instead, it treats the name of an artistic work as if it were no different from the name of an ordinary commercial product. However, this approach ignores the fact that the artistic work is not simply a commercial product but is also a means of communication. See Hicks v. Casablanca Records, 464 F.Supp. 426, 430 (S.D.N.Y. 1978) (“[M]ore so than posters, bubble gum cards, or some other such ‘merchandise’, books and movies are vehicles through which ideas and opinions are disseminated and, as such, have enjoyed certain constitutional protections, not generally accorded ‘merchandise.’ ”); see also Cardtoons, 95 F.3d at 970 (“The fact that expressive materials are sold neither renders the speech unprotected, nor alters the level of protection under the First Amendment.”) (citations omitted). The names artists bestow on their art can be part and parcel of the artistic message. See Rogers, 875 F.2d at 998 (“Film-makers and authors frequently rely on word-play, ambiguity, irony, and allusion in titling their works.”). The fact that Defendants use the Rosa Parks title in advertising does not automatically erase the expressive function of the title and render it mere commercial exploitation; if a song is sold, and the title is protected by the First Amendment, the title naturally will be “inextricably intertwined” with the song’s commercial promotion. See id.; see also Riley v. Nat’l Fed’n of the Blind, Inc., 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (holding that when protected speech is inextricable from unprotected speech, the court will treat the entire message as protected); Cardtoons, 95 F.3d at 970.

The public has at least as much interest in the free exchange of ideas as it does in avoiding misleading advertising. If Parks possesses a right to police the use of her name, even when that right can be exercised only to prevent consumer confusion, she has the means to restrict the public discourse to some extent. As Judge Kozinski has pointed out, “Intellectual property rights aren’t free: They’re imposed at the expense of future creators and of the public at large.” White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1516 (9th Cir.1993) (Kozinski, J., dissenting from denial of rehearing en banc). “Intellectual property ... includes the words, images, and sounds that we use to communicate, and “we cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.’ ” Cardtoons, 95 F.3d at 971 (quoting Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)). In sum, we do not find the unmodified likelihood of confusion test applied to commercial products adequate to differentiate between those artists who choose titles for the purpose of legitimate artistic relevancy and those artists who choose misleading titles for the purpose of commercial gain. See Mattel, 296 F.3d at 900 (“[W]hen a trademark owner asserts a right to control how we express ourselves ... applying the traditional [likelihood of confusion] test fails to account for the full weight of the public’s interest in free expression.”). Therefore, we reject the first approach.

The second approach, the “alternative avenues” test, is similarly problematic. The “alternative avenues” test was articulated in Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206 (2d Cir.1979), and is derived from real property law. The test is premised on the notion that, just as a real *450 property owner may exclude a speaker from a shopping mall so long as other locations exist for the speaker to deliver his message, a celebrity may prohibit use of his or her name so long as alternative ways exist for the artist to communicate his or her idea. See id. (citing Lloyd Corp. v. Tanner, 407 U.S. 551, 567, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972)). See also Mutual of Omaha Ins. Co., 836 F.2d at 4