California gives you the right to profit from your own identity. But what if you assume somebody else’s?
Rick Ross is famous for rapping about cocaine. Ricky D. Ross is famous for selling it. Ross (the cocaine dealer) alleged that Ross (the rapper) misappropriated his name and likeness for his own financial benefit. Or as one person wrote: “Rick Ross sued Rick Ross for being Rick Ross.”
A recent California appellate decision settled the dispute. But before revealing who prevailed (hint: it was a Ross), some background on the Ross v. Ross feud, and the right to publicity.
Ross v. Ross
Ricky D. Ross “organized and ran a vast cocaine-dealing enterprise” in the 1980s, selling “as much as $3 million worth of cocaine a day.” He “eventually amassed a fortune worth hundreds of thousands of dollars.”
As sometimes happens when you sell $2.5 billion of an illegal drug—that’s “billion” with a “b”—Ross was arrested and convicted of drug trafficking. End of story, right? Not for Ross.
Ross proceeded to: uncover a ring of “dirty cops” from behind bars; help free 120 wrongly convicted people; earn early release from jail; get arrested again for—what else—dealing cocaine; become entangled in the Iran-Contra scandal; and then earn his release again. In the process, he became “the subject of numerous television shows focusing on his erstwhile criminal empire.”
Ross’ notoriety did not escape the attention of William Leonard Roberts II. Acknowledging that Ross’ life story “grabbed him,” Roberts left his job as a correctional officer, and starting rapping about dealing cocaine. His newly adopted stage name? Rick Ross.
As Ross (the cocaine dealer) sat behind bars, Roberts (the rapper) rose to fame. Roberts scored a hit with the song “Hustlin.’” (Sample lyrics: “Everyday I’m hustlin’”—repeated 20 times.)
This time, Roberts’ notoriety didn’t escape Ross’ attention. While behind bars, Ross learned that Roberts was using the name “Rick Ross.” When he left jail, Ross filed suit, alleging that Roberts violated his right to publicity.
The Right of Publicity
The “right of publicity” gives you the right “to control the commercial use of [your] name, image, likeness, or other unequivocal aspects of [your] identity.” The right “has been traditionally understood to apply only to the use of a person’s name or likeness.” However, California “courts have expanded the scope of the right . . . may apply to the use of virtually anything that evokes identity.” For example, a federal appellate court famously found that a company violated Vanna White’s right of publicity by dressing a robot in a “wig, gown and jewelry” and posing the robot “next to a Wheel-of-Furniture-like game board.”
The right of publicity is not unlimited, however. Courts have held that the right to prevent people from using your likeness must be balanced against the right of self-expression under the First Amendment. To that end, the California Supreme Court has observed that you can use another person’s likeness if your use is “transformative”—that is, if it “adds new expression.”
The Court’s Decision
Against this backdrop, the appellate court held that Roberts did not violate Ross’ right of publicity because Roberts’ use of Ross’ identity was transformative. The court explained that Roberts “was not simply an imposter seeking to profit solely off the name and reputation of Rick Ross. Rather, he made music out of fictional tales of dealing drugs and other exploits some of which related to plaintiff.” In other words, “[u]sing the name and certain details of an infamous criminal’s life as basic elements, he created original artistic works.”
The court acknowledged that Roberts may have “initially gained some exposure through use of the name Rick Ross and the reputation it carried.” But the court noted that “[i]t defies credibility to suggest that Roberts gained success primarily from appropriation of plaintiff’s name and identity, instead of from the music and professional persona that he . . . created.”
The opinion is entertaining—it’s not every day you see judges using the word “hustlin’”—and does a good job of grappling with a difficult question. But it also leaves certain questions unanswered. When did Roberts’ use of Ross’ likeness become transformative? When he signed a record deal? When he scored a hit single? As law professor Shaun Martin notes, “it’s a very difficult line to draw between ‘derivative’ and ‘transformative’ works.”
Figuring out where to draw that line is a question for another day (and another lawsuit). The important takeaway (for rap fans, at least) is that Roberts can keep “hustling’”—and doesn’t need to change his stage name to do so.
