California Court Concludes that First Amendment Provides Complete Defense to Publicity Rights Claim of Former Criminal Against Rapper
Plaintiff Ricky D. Ross is a former criminal who spent time in prison in connection with charges relating to cocaine trafficking. He apparently gained some celebrity status as a result of "the enormous scale of his cocaine-dealing operations" and also received widespread coverage in the 1990s for a peripheral role in the Iran-Contra scandal.
Defendant William Leonard Roberts II is a former correctional officer turned apparently famous rapper who goes by the name "Rick Ross." Although Roberts apparently referenced Ross's life story early in his career, Roberts denied that his performing name was based on plaintiff. Roberts released his first commercial single in about 2005 and his lyrics often include references to running large-scale cocaine operations.
After a federal district court in California dismissed his federal claims and declined to exercise supplemental jurisdiction over his state law claims, Ross sued Roberts and other defendants in California state court alleging various state law claims all based on the allegation that Roberts had misappropriated Ross's name and identity to further Roberts's music career.
On defendants' motion for summary judgment, the trial court accepted defendants' statute of limitations argument, dismissing all of Ross's claims. The appellate court affirmed that decision but on a different ground.
Specifically, although the issue was not argued in the trial court, the appellate court concluded that the First Amendment provided a complete defense to all of Ross's claims.
The court applied the "transformative test" adopted by the California Supreme Court to resolve conflicts between rights of publicity and rights of free speech and expression under the First Amendment. As its name implies, the transformative test focuses on determining whether a work is transformative and specifically
looks at whether the 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. We ask, in other words, 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.
If the case presents a close question, the court also may make a subsidiary inquiry that asks "whether the marketability and economic value of the challenged work derive primarily from the fame of the celebrity."
The appellate court did not, however, find the facts of this case to present a close question, characterizing Roberts's First Amendment defense as "quite obvious."
We recognize that Roberts's 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's music career was synthesized. But these are not the "very sum and substance" of Roberts's work. . . .
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.
The "subsidiary inquiry" of the transformative test only cemented the validity of the First Amendment defense for the appellate court, which concluded that it "defie[d] 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 (and the other defendants) created."
The appellate court thus affirmed the trial court's grant of summary judgment in favor of the defendants.
The case cite is Ross v. Roberts, Appeal No. B242531 (Cal. Ct. App. Dec. 23, 2013).