Editor’s Note: This column has been edited from the version that was originally posted on January 13, 2014.
Late this past December, a California appeals court held that a person’s name and public persona are First Amendment-protected if they incorporate significant creative elements, and thus count as a transformative use of the original name and/or persona. In this column, I’ll argue that the court was correct in its holding.
The First Amendment issue here arose when the plaintiff and appellant, Ricky D. Ross, brought suit. Ross achieved fame and celebrity status, at least in the eyes of some, due to his past enormous cocaine-dealing operations. At some time, Ross came to believe that his name and persona had been appropriated by the rap artist “Rick Ross,” who raps about fictional accounts of selling cocaine.
The Relevant Evidence Regarding the Two Men and Their Names
Plaintiff Ricky D. Ross showed in court that at birth he was named Ricky Donnell Ross, and that he later used the names Ricky Ross, Rick Ross, and “Freeway” Ricky Ross.
Ross’s cocaine empire cost him some prison time, but in prison, he also did some good, by uncovering a ring of dirty cops who planted evidence and framed innocent people. He also gained media attention via a journalist’s piece regarding Ross’s former cocaine supplier, and he again was in the news due to his marginal role in the Iran-Contra scandal. Finally, Ross also gained notoriety via the television accounts of his criminal empire.
In 2006, plaintiff Ricky D. Ross discovered that the professional rapper “Rick Ross” was using a name that the plaintiff had thought of as belonging to him. In response, the rapper “Rick Ross” admitted that he was enamored by the life story of the plaintiff, but denied that his own stage name derived from the plaintiff’s name. Yet the account regarding how Rick Ross got his name seems sketchy: He claimed that his name derived from his old high school nickname, “big boss.” (Perhaps more information would clarify how “big boss” morphed into “Rick Ross,” but right now those intermediate steps seems unclear.) “Ricky D. Ross” raps about cocaine operations, but apparently does so without the kind of personal experience that the plaintiff possesses.
The Court’s Reasoning on Summary Judgment
At the summary judgment stage, the court noted that, due to the First Amendment aspect of the case, a grant of summary judgment was to be favored, if possible. It also noted that the California Supreme Court has devised a test to balance the right of a celebrity to control the commercial exploitation of his or her identity, against another individual’s right to free expression under the First Amendment. A key factor in the test is whether the work is transformative. And to determine whether that is the case, the Court asks “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.”
A related inquiry also asks, “whether the marketability and economic value of the challenged work derive primarily from the fame of the celebrity.”
Why the Court Ruled Against Ricky D. Ross
Ultimately, the Court ruled in favor of the defendant, “Rick Ross”, on the ground that the name he had taken on did not stand alone. Instead, the Court reasoned, “Rick Ross” chose to put the name in the context of the rest of the work of “Rick Ross” thus leading the court to conclude that “Using the name and certain details of a criminal’s life as basic elements, he created original artistic works.” The Court also found, importantly, that “the value of Roberts’s work does not derive primarily from plaintiff’s fame.” On this basis, the court, taking its holistic view of the works in question, ruled in favor of the defendant.