December 30, 2013 7:47am PT by Eriq Gardner
'Freeway' Ricky Ross vs. Rick Ross: First Amendment Protects Hip-Hop Persona
With a First Amendment bullet, hip-hop superstar Rick Ross has shot down a lawsuit from a former drug kingpin who ruled Los Angeles during the 1980s.
That drug kingpin was "Freeway" Ricky Ross, who once sold as much as $3 million worth of cocaine a day, had ties with the Nicaraguan Contras and became the object of scorn for many prominent politicians during the Iran-Contra political scandal. He served 13 years in prison, and before he was released in 2009, came across a magazine article about "up-and-coming" rappers including William Roberts II, whose stage name was Rick Ross.
Now released, and by many accounts a model citizen these days, "Freeway" Ross has been pursuing Roberts in court for appropriating his name and likeness. Other defendants in a $10 million lawsuit included Warner Bros. Records, Universal Music and Jay Z as those who allegedly helped the hip-hop star hit it big with a stolen identity.
At the trial court, though, "Freeway" Ross struggled with a technical issue.
The plaintiff had known about the rapper since at least 2006, but didn't file his lawsuit until 2010. As such, his claims were deemed by a judge to be untimely.
On appeal, "Freeway" Ross challenged whether the rapper's work with a new label should be considered as part of the same "single publication" as his earlier work or whether it should be considered a "republication" that entitled him to more time to bring claims. As Ross himself put it to The Hollywood Reporter, "This is classic republication as to all defendants, there was consistently new music, management decisions and product made. The statute of limitations was never meant to be used to hide defendants actively infringing with new decisions and campaigns."
Last week, a California appeals court issued its ruling and decided to open things up beyond "Freeway" Ross' challenge. Judge Roger Boren says he is "not convinced" that the trial court was correct in its rulings, but nevertheless affirms the dismissal on First Amendment grounds.
In the dispute, there was some evidence to suggest that Rick Ross had Ricky Ross in mind when creating his persona. For example, the defendant said that the plaintiff's life story "grabbed him." (On the other hand, the rapper said his performing name was based on his high school football nickname of "big boss.")
The judge decides to view Rick Ross v. William Leonard Roberts through the frame of other cases that have balanced a celebrity's right to control commercial exploitation of his or her likeness against another individual's right to free expression. In one famous case involving an artist who sold lithographs and T-shirts bearing the faces of the Three Stooges, the test became whether the use of celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. Here, the judge applies the test beyond visual expression.
"We recognize that Roberts' work—his music and persona as a rap musician—relies to some extent on plaintiff's name and persona," writes Judge Boren. "Roberts chose to use the name 'Rick Ross.' He raps about trafficking in cocaine and brags about his wealth. These were 'raw materials' from which Roberts' music career was synthesized. But these are not the 'very sum and substance' of Roberts' work."
Ultimately, Judge Boren finds that the hip-hop star's persona is entitled to protection as expressive speech because it's transformative.
"Roberts created a celebrity identity, using the name Rick Ross, of a cocaine kingpin turned rapper," says the ruling. "He was not simply an impostor 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."