January 20, 2014
By Oliver Herzfeld
Rickie Donnell Ross, known as Ricky Ross and Rick Ross, is a former criminal who in the 1980s organized and ran an enormous cocaine-dealing operation. He amassed a fortune in the hundreds of millions of dollars through his illicit empire and, following his arrest, became a famous personality and the subject of many news articles and television shows.
William Leonard Roberts II is a former correctional officer (a fact he denied and tried to hide) who in 2006 commenced a career as a gangster rap musician under the stage name Rick Ross. Roberts became successful and famous by portraying himself as a drug dealing kingpin through songs with lyrics that include many fictional references and stories depicting an imagined life of a crime boss leading a large-scale cocaine operation.
In 2010, Ross sued Roberts for misappropriation of Ross’ name, identity and rights of publicity. During his sworndeposition, Roberts denied any intention on his part to appropriate the name or identity of Ross. According to Roberts, his nickname was originally “Big East” because he played football for a team in the Big East Conference. When he became an All American his nickname changed to “Big Boss.” And when an unidentified friend accidentally misunderstood and called him “Rick Ross,” Roberts adopted that name. However, when Roberts filled out a Department of Corrections form that asked him to list all his names, he only wrote “William L. Roberts” and “Big East”.
Notwithstanding the implausibility of Roberts’ denial, the trial court ruled in his favor based on the statute of limitations (i.e., the plaintiff exceeded the time period within which a lawsuit may be filed) and laches (i.e., an equitable doctrine that a defendant may assert when a plaintiff inexcusably “sleeps on his rights” and the delay prejudices the defendant). Ross appealed the decision and the appellate court again ruled in favor of Roberts but on different grounds, namely, that his actions are protected by the First Amendment. In particular, the court stated:
[Roberts’ use of] plaintiff’s name and persona…were “raw materials” from which Roberts’ music career was synthesized. But these are not the “very sum and substance” of Roberts’ work…
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.
Although it is possible that Roberts initially gained some exposure through use of the name Rick Ross and the reputation it carried, the value of Roberts’ work does not derive primarily from plaintiff’s fame. The economic value of Roberts’ work is reflected to a large extent by the number of CDs and records he sells.
Now I understand that the First Amendment protects a product that contains a celebrity’s likeness if it is so transformed that it has become primarily a new expression. I understand that it is common for tribute bands to use names that allude to, and playfully suggest they are not, the originals (e.g., Aerosmisn’t, Faux Fighters, Metalli-Replica, The Not-Quite Stripes and The Second-Rateful Dead). And I understand that Jay-Z and the other founders of the Roc-A-Fella record label were permitted to use that name because no one would mistakenly believe they were actually relatives of John D. Rockefeller. But in this case, Roberts is using the actual name and assuming the actual identity of Ross. The court cited a precedent holding “that First Amendment protection ‘extend[s] to all forms of expression,’ including words (written and spoken) and music.” But should such protection extend to the use of a person’s name and identity by another person? Would another performer be permitted to assume the actual name and identity of Warren Buffett or Bill Gates?
It is true that Curtis Jackson III’s stage name, 50 Cent, was derived from the nickname of robber and criminal, Kelvin Martin. However, Martin passed away over 10 years before Jackson’s first official appearance on a song; Jackson never assumed the identity of, or portrayed himself as actually being, Martin; and I am not aware of any claims or objections to Jackson’s name adoption raised by Martin’s estate.
The court stated “the economic value of Roberts’ work is reflected to a large extent by the number of CDs and records he sells.” But what if Ross commenced his lawsuit in 2006 at the inception of Roberts’ career as a rapper? Presumably, Ross would have prevailed because, at that time, Roberts sought advancement and success from the use of Ross’ name and identity and had not yet created a body of original artistic works constituting a transformative new expression protected by the First Amendment. If so, what is the implied lesson of the court’s decision? Should aspiring performers be encouraged to appropriate the name and identity of famous personalities in a race to become successful and create a transformative body of work before being sued?
Perhaps the key to understanding this case is tying together the rationales of both the trial and appellate courts. This would never happen to Buffett or Gates because they would never wait four years before commencing a lawsuit against a misappropriator of their name and identity. I believe Ross’ failure to timely assert his rights provided Roberts with the time and opportunity to develop his oeuvre, thereby creating an enforceable defense under the First Amendment.