Whose Name Is It Anyway?

Rapper William Leonard Roberts II, professionally known as Rick Ross, was recently the victor in a legal dispute with former drug trafficker Ricky D. Ross over the use of Roberts’ stage name.

According to the California Court of Appeal’s Dec. 23, 2013, opinion in Ross v. Roberts, et al., plaintiff Ricky D. Ross, also known as “Freeway Rick Ross,” rose to infamy in the 1980s as he ruled the West Coast while overseeing a multimillion-dollar cocaine trafficking enterprise and became a street legend.  Ross’ network packaged and transported cocaine directly into at least six states and indirectly into many others.  He was the subject of the Black Entertainment Television true-crime documentary series “American Gangster,” which profiled the rise and fall of certain criminals.

Defendant Roberts admittedly lived a different life.  He is a successful recording artist who is professionally known as Rick Ross.  Although Roberts, through his lyrics and music, has created a fictional image of a cocaine-trafficking gangster, he in fact attended college on a football scholarship and was once a correctional officer.  He later signed a record deal with Island Def Jam, a major record label known for breaking hip-hop superstars such as Kanye West and Jeezy.

While in jail, Ross read a magazine article about up-and-coming rappers and learned of Roberts’ use of the stage name Rick Ross.  In 2010, Ross sued Roberts, his record label and several other parties in California state court for allegedly misappropriating his name and likeness to further Roberts’ rap music career.  Ruling that the First Amendment protected Roberts’ creative expression, the state court judge granted summary judgment in his favor.

California, like most jurisdictions, recognizes that “the right of publicity protects an individual’s right to profit from the commercial value of his her identity.”  Gionfriddo v. Major League Baseball (2001) 94 Cal.App. 4th 400, 4009.  California also recognizes a statutory right of publicity. Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 391 (Comedy III).  California Civil Code § 3344(a) provides, in pertinent part, that “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.”

The appellate court in Ross, citing the California Supreme Court’s analysis in Comedy III, applied the transformative test and chose to “ ‘balance’ the right of a celebrity to control the commercial exploitation of his or her likeness . . .  against another individual’s right to free expression under the First Amendment.”  The application of the transformative test seeks to determine “whether the new work merely ‘supersede[s] the objects’ of the original creation . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”  It looks at “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.

Comedy III involved a visual artist who sold lithographs and T-shirts bearing the faces of the Three Stooges.  The transformative test became whether the use of celebrity likeness “is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”  Relying on Comedy III, the Ross court also noted that First Amendment protection extends not only to visual expressions but to all forms of expression, including written and spoken words and music.

In Ross, the court acknowledged that Roberts’ “work — his music and persona as a rap musician—relies to some extent on plaintiff’s name and persona.  Roberts chose to use the name ‘Rick Ross.’  He raps about trafficking in cocaine and brags about his wealth. These were ‘raw materials’ from which Roberts’ music career was synthesized. But these are not the ‘very sum and substance’ of Roberts’ work.”

Further, “Roberts created a celebrity identity, using the name Rick Ross, of a cocaine kingpin turned rapper.  He 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.  Using the name and certain details of an infamous criminal’s life as basic elements, he created original artistic works.”

Simply, Roberts’ fictional entertainment persona was found to be transformative.  So the answer to the question of whose name is it anyway is both Ross and Roberts.

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