Friday, December 27, 2013

Ross v. Roberts (Cal. Ct. App. - Dec. 23, 2013)

Even an old fogey such as myself knows who "Rick Ross" is.  He's the latest incarnation of the rapper/drug dealer persona.  With an emphasis on the accumulation of wealth through any means.  He has a following that's particularly large and proud.  So much so that even people like me have heard of him.

But what I didn't know -- until now -- is that "Rick Ross" isn't actually Rick Ross.  His name's actually William Roberts.  Or, were we to shorten it, "Billy Bob".  Which makes me understand why he might prefer the name "Rick Ross."

Moreover, while "Rick Ross" portrays himself as a drug-dealing "gansta" livin' the life of crime, he's actually . . . a former prison guard.  Not exactly something he's excited to tell his fans.  So he tries to keep that fact -- as they say -- on the "down low".

All of which is interesting.

But what I also didn't know until now is that there's actually a Rick Ross.  He's a real person.  Moreover, he's also -- or at least was -- someone famous.  So much so that there's substantial -- indeed, fairly huge -- evidence that the "current" Rick Ross took his name, and story, and the persona from this other (real) person.  Someone who happens to be currently alive.  Not only appropriating his life story and personality, but even some of his memorable "catch phrases".

The "real" Rick Ross was/is also knows as "Freeway Ricky" Ross.  He was a huge cocaine dealer during the crack epidemic of the 80s and 90s.  And boy do I mean huge.  As in selling nearly a billion dollars of coke.  A performance that achieved for himself some no small amount of renown.  The type of renown that the later "Rick Ross" thought could be capitalized upon.

Apparently the real Rick Ross discovered that you could get really cheap cocaine from Nicaragua.  So he undersold his competitors.  And distributed it throughout the country through Crips and Bloods.

The words "Nicaragua" and "80s" may perhaps ring a bell for you.  Maybe you vaguely recall something about the contras.  No coincidence.  There's lots of evidence that Rick Ross had contacts with the CIA and that the U.S. government was fully aware of the drug-dealing that simultaneously provided funds to the contras as well as permitted Ricky to make his living.

Ultimately Ricky got busted.  But now he's out of prison.  And he thought that since his life had been ripped off by the "new" Rick Ross, he'd sue.  So he did.

The California Court of Appeal affirms the dismissal of the lawsuit filed by the "true" Rick Ross.  Albeit on alternate grounds than those relied upon by the trial court.  The Court of Appeal holds that the "fake" Rick Ross had a First Amendment right to appropriate the persona of the "true" Rick Ross because his use of that persona was "transformative."  The "new" Rick Ross has a variety of attributes -- rapper, entertainer, etc. -- that the "old" Rick Ross didn't have.  So that makes it a new expressive work.  One that's protected by the First Amendment.

For me, it's a very difficult line to draw between "derivative" and "transformative" works.  Even in general, and as applied to traditional works (e.g., books, movies, etc.).  But that's especially the case here.  When we're talking about appropriating the existence of someone else.

Everyone recognizes that you don't have a First Amendment right to conduct identity theft.  Or go around dressing and singing like Mariah Carey and selling tickets while pretending to be her.  That's taking away someone's right of publicity.

But what about tribute bands?  Or people who are "sort of" like their doppelgangers?  What's the correct line there?  When do you have the right to "sort of" pretend to be another person?  Which, in my mind, is pretty much transpiring here?

It's especially difficult in a case like this in which there's a nontrivial amount of time between the filing of the lawsuit and the "new" person's appropriation.  Which is something I wish the Court of Appeal would have addressed in its opinion.  The Court of Appeal strikes a resonant chord with me when it says that the new Rick Ross is sufficiently different from the "original" Rick Ross to make a difference.  After all, the new Rick Ross does indeed do a lot of things nowadays that the old Rick Ross didn't do.

But what about when Billy Bob first started appropriating the life of Rick Ross?  What about when Billy first started calling himself Rick Ross, and wasn't yet rich and famous?  At that point, Billy wasn't all that he now is.  He hadn't really done much -- if anything -- transformative.  He hadn't expanded his franchise.  He didn't have the abilities (or talents) he now has.  It'd be hard to argue that what he was doing at that point was really transformative.  He was simply trading off of someone else's fame and good name.  If that's true, how can something that's initially wrong become right merely through the passage of time?  Even if it's true that an ultimately transformative character was created, if the only thing that permitted such a transformation was the initially illegal acquisition of someone else's personality, how's that okay?

It might perhaps be that even the "initial" (new) Rick Ross was so radically dissimilar to the (original) Rick Ross that even that persona was transformative.  But I strongly doubt it.  If so, the case is especially tough.  It then involves not only how you draw the relevant line, but when.  Making things doubly difficult.

But at least for the meantime, (former) King of Cocaine Rick Ross loses to the (current) King of Cocaine Wanna Be Rick Ross.

And we all get a little more educated.