Tuesday, December 24, 2013
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Court of Appeal Rules Rap Artist Not Liable for Appropriating Persona of Notorious Drug Dealer
By JUSTIN LEVINE, Staff Writer
A rap artist who appropriated the name and persona of a former criminal who gained a public reputation for his large-scale cocaine-dealing operations is protected under the First Amendment from a misappropriation lawsuit, this district’s Court of Appeal ruled yesterday.
William Leonard Roberts II is a former corrections officer turned notable rap star who performs under the stage name “Rick Ross.” Many of his rap lyrics include fictional accounts of selling cocaine.
Roberts was sued by Ricky D. Ross, also known as “Freeway” Rick Ross, for misappropriation of his identity. Ross is a convicted drug trafficker whom the U.S. Department of Justice said presided over a “huge drug empire” in Los Angeles worth hundreds of millions of dollars in the early and mid-1980s.
Ross pled six causes of action against Roberts, including violation of California Civil Code §3344, false advertising, unjust enrichment, unfair business practices, common law claims of misappropriation of name and identity, and misappropriation of his rights of publicity. He also named various record labels that Roberts was associated with as co-defendants.
Roberts insisted that his stage name was merely meant as a play on the phrase “big boss,” an old nickname he had while playing high school football.
Roberts and the record labels were granted summary judgment by trial court judge Rita Miller, who said that Ross’s claims were barred by the statute of limitations and laches.
The Court of Appeal affirmed on separate grounds, ruling that Roberts use of the “Rick Ross” name and persona was protected expression under the First Amendment because it incorporated significant new and creative elements. It said the defendants’ First Amendment rights provided “a complete defense to all of plaintiff’s claims.”
Writing for a unanimous panel, Div. Two’s Presiding Justice Roger Boren said:
“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.”
Citing and quoting from the California Supreme Court’s decision in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, Boren wrote:
“The central inquiry is whether a work is ‘transformative.’…‘When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist.’ But, ‘when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity…[W]orks of parody or other distortions of the celebrity figure are not, from the celebrity fan’s viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect. Accordingly, First Amendment protection of such works outweighs whatever interest the state may have in enforcing the right of publicity.’”
Boren said that Roberts’ use of elements from Ross’s persona was transformative in such a way that Roberts’s marketability didn’t primarily derive from Ross’s own fame, but rather from the music he sells.
He said, that even though it was possible that “Roberts initially gained some exposure through use of the name Rick Ross and the reputation it carried…[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 (and the other defendants) created.”
Boren ruled that, even though there was no misappropriation of anything visual, a First Amendment defense still applied.
“The rapper ‘Rick Ross’ is a highly altered, essentially fantasized version of plaintiff,” he said. “Roberts’s music may be analogized to a work of fiction in which the protagonist bears some resemblance to the original Rick Ross. The resemblance is one ‘raw material’ upon which the story is based, but it is merely a minor detail when viewed in the context of the larger story—Roberts’s music and persona are much more than literal depictions of the real Rick Ross.”
Plaintiff Ross was represented on appeal by attorneys John D. Younesi and Jan A. Yoss.
Defendant Roberts and the record labels were represented by Stanton L. Stein, Edward A. Klein and Allen P. Lohse of Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, and Linda M. Burrow and Eric S. Pettit.of Caldwell Leslie & Proctor.
The case is Ross v. Roberts, 13 S.O.S. 6642.
Copyright 2013, Metropolitan News Company