Ross v. Roberts

Opinion

Plaintiff and appellant Ricky D. Ross is a former criminal who achieved some sort of celebrity status due, in part, to the enormous scale of his cocaine-dealing operations. Defendant and respondent William Leonard Roberts II is a famous rap musician who goes by the name “Rick Ross.” His lyrics frequently include fictional accounts of selling cocaine. Plaintiff sued Roberts and other defendants/respondents (Maybach Music Group, Slip-N-Slide Records, and Universal Music Group) claiming that "they misappropriated plaintiff’s name and identity for their own financial benefit. Defendants moved for and were granted summary judgment by the trial court.

In this opinion, we find that defendants’ use of the “Rick Ross” name and persona is protected expression under the First Amendment because it incorporates significant creative elements. Accordingly, we conclude that summary judgment is appropriate.

BACKGROUND

Procedural background

Plaintiff initially filed suit against defendants and several other parties in June 2010 in the United States District Court for the Central District of California, asserting federal and state law claims. Following a motion to dismiss filed by various defendants, the district court dismissed the federal claims in November 2010 and declined to exercise supplemental jurisdiction over the remaining state claims. ( 28 U.S.C. § 1367 (c)(3).)

Plaintiff then filed this action in state court in December 2010. The operative first amended complaint pleaded six causes of action: (1) violation of Civil Code section 3344; (2) false advertising; (3) unjust enrichment; (4) unfair business practices; (5) common law claims of misappropriation of name and identity; and (6) misappropriation of rights of publicity. All causes

Evidence presented on the motion for summary judgment

In December 2011, defendants filed a motion for summary judgment. Evidence presented in connection with the motion included the following:

Plaintiff was bom Rickie Donnell Ross. Throughout his life, he has gone by the names Ricky Ross and Rick Ross, and was at one time dubbed with the nickname “Freeway” Ricky Ross. During the 1980’s, plaintiff organized and ran a vast cocaine-dealing enterprise. His network of associates packaged and transported cocaine for sale directly into at least six different states, and indirectly into many others. At the height of plaintiffs operation, he sold as much as $3 million worth of cocaine a day. He eventually amassed a fortune worth hundreds of millions of dollars, and he owned dozens of properties as well as legitimate businesses.

In 1989, plaintiff was arrested in Ohio and charged with trafficking cocaine and was indicted on separate charges in Texas. He pled guilty to the charges in both Ohio and Texas and received lengthy sentences. While in prison, plaintiff helped to uncover a ring of “dirty cops,” who planted evidence and framed innocent people using false evidence. Plaintiff’s testimony helped to free approximately 120 wrongly convicted men and he was rewarded with a significantly reduced sentence, leading to his release from prison in 1994.

Just six months after his release, plaintiff was arrested again and subsequently convicted on new charges of conspiracy to traffic cocaine. While plaintiff was in prison this time, a journalist interviewed him and wrote a piece regarding plaintiff’s former cocaine supplier, who in the 1980’s had close ties to the Nicaraguan Contras. The story gained significant exposure, and in the 1990’s plaintiff received widespread coverage regarding his peripheral role in the Iran-Contra scandal. Over the years, plaintiff has also been the subject of numerous television shows focusing on his erstwhile criminal empire.

In 2006, plaintiff discovered that Roberts was using the name “Rick Ross,” when he saw a magazine article about “up and coming” rappers. Still in prison, plaintiff contacted a lawyer to write a cease and desist letter, but neither plaintiff nor the lawyer ever received a meaningful response. Plaintiff was eventually released from prison in 2009.

DISCUSSION

Under Code of Civil Procedure section 437c, subdivision (c), a motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant meets its burden on summary judgment by establishing a complete defense to the plaintiff’s causes of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show a triable issue of fact material to the defense. {Ibid.) We evaluate a summary judgment ruling de novo, independently reviewing the record to determine whether there are any triable issues of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 , 767 [ 107 Cal.Rptr.2d 617 , 23 P.3d 1143 ].) “In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court’s determination of a motion for summary judgment.” (Distefano v. Forester (2001) 85 Cal.App.4th 1249 , 1258 [ 102 Cal.Rptr.2d 813 ].) In general, we give no deference to the trial court’s ruling or reasoning, and only decide whether the right result was reached. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688 , 694 [ 23 Cal.Rptr.3d 915 ].)

On appeal, defendants argue, inter alia, that summary judgment is proper because Roberts’s “work”—his music and his professional persona as a drug-dealing rapper who goes by the name Rick Ross—is a creative expression protected by the First Amendment. Defendants did not make this argument when moving for summary judgment in the trial court, an omission which, generally, would preclude us from deciding the issue on appeal. (See Juge v. County of Sacramento (1993) 12 Cal.App.4th 59 , 71 [ 15 Cal.Rptr.2d 598 ].) Consideration of the issue is appropriate, however, if the record establishes that the opposing party “could not have shown a triable issue of material fact had the ground of law been asserted by the moving party.” (Ibid.; see Folberg v. Clara G. R. Kinney Co. (1980) 104 Cal.App.3d 136 , 140 [ 163 Cal.Rptr. 426 ]; California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16 , 26 [ 4 Cal.Rptr.3d 785 ].)

Pl

aintiff’s causes of action are all based on the theory that Roberts misappropriated plaintiff’s name and identity for Roberts’s and the other defendants’ commercial advantage. Plaintiff contends that defendants are liable under Civil Code section 3344, as well as common law rights of publicity and related claims.

The right of publicity protects an individual’s right to profit from the commercial value of his or her identity. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400 , 409 [ 114 Cal.Rptr.2d 307 ]; Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529 , 544 [ 135 Cal.Rptr.3d 200 ].) California recognizes both a common law and statutory right of publicity. (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 , 391 [ 106 Cal.Rptr.2d 126 , 21 P.3d 797 ] (Comedy III).) The common law cause of action may be stated by pleading the defendant’s unauthorized use of the plaintiff’s identity; the appropriation of the plaintiff’s

A

. The Transformative Test

As our Supreme Court explained in Comedy III, a tension exists between rights of publicity and rights of free speech and expression under the First Amendment. (Comedy III, supra, 25 Cal.4th 387 , 396-397.) Purposes of the First Amendment include preserving an uninhibited marketplace of ideas and fostering individual rights of self-expression. (Comedy III, at p. 397.) A right of publicity has the potential to frustrate these purposes, as it can lead to suppression of individual expression and censorship of the public display of ideas. {Ibid.)

Our Supreme Court thus devised a test to balance the right of a celebrity to control the commercial exploitation of his or her likeness and identity against another individual’s right to free expression under the First Amendment. (Comedy III, supra, 25 Cal.4th at p. 391; Winter, supra, 30 Cal.4th at p. 885; see Kirby, supra, 144 Cal.App.4th 47 , 58.) The test is based on an examination of “ ‘whether the new work merely “supersede^] the objects” of the original creation ... or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message .... [Citation.]’ ” (Comedy III, at p. 404, citations omitted.)

The central inquiry is whether a work is “ ‘transformative.’ ” (Comedy III, supra, 25 Cal.4th at p. 404.) “When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression

Simply stated, the transformative test looks at “whether the 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. We ask, in other words, 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.” (Comedy III, supra, 25 Cal.4th at p. 406.) This transformative test is the court’s primary inquiry when resolving a conflict between the right of publicity and the First Amendment.

A “subsidiary inquiry” that courts may employ, particularly in close cases, is to ask whether “the marketability and economic value of the challenged work derive primarily from the fame of the celebrity.” (Comedy III, supra, 25 Cal.4th at p. 407.) If the answer to this question is “no,” and if the value of the work instead derives from the creativity, skill, or reputation of the artist, then the First Amendment protects against a right of publicity claim. (Comedy III, at p. 407.) “In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame.” (Ibid.)

The issue addressed in Comedy III was whether an artist’s drawings of the Three Stooges, which were little more than literal reproductions of their likenesses sold as lithographs and on T-shirts, qualified as artworks protected by the First Amendment. The Supreme Court answered the question in the negative. (Comedy III, supra, 25 Cal.4th at pp. 408-409.) In contrast, in Winter, the court found that comic book illustrations depicting the musician

Comedy Ill’s “subsidiary inquiry” also supports application of the First Amendment defense. 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’s work does not derive primarily from plaintiff’s fame. (See Comedy III, supra, 25 Cal.4th at p. 407.) The economic value of Roberts’s work is reflected to a large extent by the number of CD’s and records he sells. It can safely be assumed that when individuals purchase music, they generally do so in order to listen to music that they enjoy. It defies credibility to suggest that Roberts gained success primarily from appropriation of plaintiff’s name and identity, instead of from the music and professional persona that he (and the other defendants) created.

Relying on Estate of Fuller v. Maxfield & Oberton Holdings, LLC (N.D.Cal. 2012) 906 F.Supp.2d 997 (Fuller), plaintiff argues that the First Amendment defense only applies in a right of publicity case when the alleged misappropriation is of a “likeness” (i.e., a person’s visual image), not a name. In Fuller, Buckminster Fuller’s estate sued the manufacturer of toys called “Buckyballs,” which, according to the defendant’s press release, were “ ‘inspired and named after [the] famous architectural engineer and inventor’ ” Buckminster Fuller; the toys, which consisted of round magnets, could be manipulated to resemble the carbon-60 molecule, commonly referred to as the “buckyball” molecule. (906 F.Supp.2d at p. 1002.) The district court identified two reasons that the manufacturer’s First Amendment defense failed. First, the cases on which the manufacturer relied, such as Comedy III, Kirby, and Winter, all addressed the use of a plaintiff’s likeness, instead of only a name. (Fuller, at p. 1006.) According to the Fuller court, “[t]his distinction is a meaningful one, as the reasoning of the cases that articulate the transformative use defense depends on the visual nature of the transformation. . . . The simple use of a name is not an act of expression in the way that the creation or alteration of an image is, and a name cannot be transformed while remaining recognizable in the way that an image can.” (Ibid.) Second, Fuller’s “name and identity” were not part of the actual product the manufacturer was selling—the toys did not depict or reference Fuller. (Ibid.) The court found no First Amendment protection “for the use of a celebrity’s name, transformed or otherwise, to sell an unrelated product.” (906 F.Supp.2d at p. 1006.)

We believe that Fuller’s emphasis on the “visual nature” of the First Amendment defense in right of publicity cases can be misleading, since it