A recent California appeals court decision ruled rapper Rick Ross did not violate the publicity rights of former criminal Ricky D. Ross, also known as “Freeway” Rick Ross, a former kingpin of a cocaine empire. This ruling is a positive development for artistic freedom and freedom of speech.
William Leonard Roberts II, better known by his stage name, Rick Ross, is one of the most popular hip-hop stars in recent years. But in 2010, Roberts faced a lawsuit from the real Rick Ross, a former drug dealer. Ricky D. Ross asserted that the rapper violated his publicity rights by misappropriating his name for financial gain.
Roberts’ first commercial single, “Hustlin’,” features the musician rapping about selling cocaine and using the refrain, “every day I’m hustlin’” – a phrase used by the real Ricky D. Ross.
A trial court rejected the lawsuit, finding that it was not timely filed. On appeal, the California Court of Appeals, 2nd District, also ruled Dec. 23 in favor of the musician in Ross v. Roberts – but for a different reason. The appeals court ruled that Roberts was protected by the First Amendment.
The right of publicity is an important protection of an individual’s right to profit from the commercial use of his or her name. However, unfettered application of publicity rights can trample and suppress the free-expression rights of others.
To balance an individual’s publicity rights against another’s right to engage in free expression, many courts apply the so-called “transformative test.” Under this test, courts determine whether the defendant’s expressive work has transformed a person’s name or likeness enough that the expression in effect has been changed into primarily the defendant’s own expression.
Using this test, the California Court of Appeals ruled in favor of Roberts.
“We recognize that Roberts’s work – his music and persona as a rap musician – relies to some extent on plaintiff’s name and persona,” the court acknowledged. However, the court reasoned that Roberts, though using Ross’ name and drug-dealing exploits, “created original artistic works.”
The court reasoned that “the value of Roberts’ work does not derive primarily from plaintiff’s (Ricky D. Ross’s) fame.”
This ruling promotes the interests of free speech and benefits creators of musical and other artistic expression. A ruling against Roberts would have chilled other artists from taking slices of real life and transforming them into artistic expression.
David L. Hudson Jr. is an expert in First Amendment issues who writes for firstamendmentcenter.org and for other publications. Hudson teaches law and was a scholar at the First Amendment Center. He is the author or co-author of more than 30 books, including several on the U.S. Supreme Court, the Constitution and student rights.