A “Dirty” Lawsuit: How a Sex Scandal Could Impact Online Defamation Law

A former high school teacher and NFL cheerleader sleeps with her student.  She faces widespread scorn, including scathing Internet comments.  Despite the scorn, she becomes engaged to the student.

It sounds like the plot of a made-for-TV movie.  But these facts form the basis of a landmark defamation lawsuit that could have ramifications for any website that allows users to post comments.

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“River Crabbing” Chinese Search Engine Battles for Freedom of Expression in the U.S.

Since then, this goal has often been cited by the Chinese government as a reason for Internet censorship.  In Mandarin, the word “Harmonious” is pronounced héxié (the accent marks here indicate rising tones).  However, by changing the tones slightly to héxiè (a rising tone followed by a falling tone) the word changes from harmonious to “river crab” – which has become Internet slang for government censor.  So when something suddenly disappears from the Internet in China, people often joke that it has been “river-crabbed.”

Although river-crabbing does not happen here in the United States, last week a federal judge had to address a related problem:  Does the First Amendment allow Baidu.com (China’s version of Google) to censor political speech from its search results for users here in the United States? Continue reading the full story . . . »


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Fun with Facebook

Recent Cases Involving Facebook 

 

I recently attended a presentation by retired judge Jacqueline Connor on the effect of social media in the legal system.  After listening to her talk about a number of highly amusing cases, I went online to see just how many such cases are now out there.  I was shocked to find that in the month of February 2014 alone, there were over 100 legal opinions issued in the U.S. just involving Facebook.  While some of these cases were more disturbing than amusing, there were a few gems that cried out to be written about.

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Did King.com Really “Trademark” the Word Candy?

Much of the independent video game world is up in arms regarding the recent news that large UK game developer King.com has “trademarked” the word CANDY.  Many see this as an attempt by a Wonka-esque behemoth to grab control of a common word in order to crush its smaller competitors like some piece of common confectionary.  While there may be some truth to that thought, as is often the case when legal issues get picked up by the blogosphere and even mass media, there are also many misperceptions clouding the debate.  Because I feel that if I’m going to take a (short) break from playing CANDY CRUSH, I might as well write about it, I want to try to clear up some misconceptions.

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Federal Judge Declares Sherlock Holmes Characters in Public Domain. Sort of.

Federal Judge Declares Sherlock Holmes Characters in Public Domain.  Sort of.

 

Comedian Dmitri Martin has a great joke about the expression “sort of.”  Although normally a fairly meaningless expression, saying “sort of” after certain things suddenly becomes very important.  Such as after the phrase “I love you,” or “You’re going to live,” or “It’s a boy.”  I immediately thought of this joke after reading a recent order issued by a federal court in Illinois.  The order declared that Sherlock Holmes, Dr. Watson, 221B Baker Street, the evil Professor Moriarty, and other elements of Sir Arthur Conan Doyle’s beloved works have fallen into the public domain.

 

Sort of.

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“Hustlin’” to a Legal Victory: Rick Ross and the Right of Publicity

California gives you the right to profit from your own identity.  But what if you assume somebody else’s?

Rick Ross is famous for rapping about cocaine.  Ricky D. Ross is famous for selling it.  Ross (the cocaine dealer) alleged that Ross (the rapper) misappropriated his name and likeness for his own financial benefit.  Or as one person wrote: “Rick Ross sued Rick Ross for being Rick Ross.”

A recent California appellate decision settled the dispute.  But before revealing who prevailed (hint: it was a Ross), some background on the Ross v. Ross feud, and the right to publicity.

Ross v. Ross

Ricky D. Ross “organized and ran a vast cocaine-dealing enterprise” in the 1980s, selling “as much as $3 million worth of cocaine a day.”  He “eventually amassed a fortune worth hundreds of thousands of dollars.”

As sometimes happens when you sell $2.5 billion of an illegal drug—that’s “billion” with a “b”—Ross was arrested and convicted of drug trafficking.  End of story, right?  Not for Ross.

Ross proceeded to: uncover a ring of “dirty cops” from behind bars; help free 120 wrongly convicted people; earn early release from jail; get arrested again for—what else—dealing cocaine; become entangled in the Iran-Contra scandal; and then earn his release again.  In the process, he became “the subject of numerous television shows focusing on his erstwhile criminal empire.”

Ross’ notoriety did not escape the attention of William Leonard Roberts II.  Acknowledging that Ross’ life story “grabbed him,” Roberts left his job as a correctional officer, and starting rapping about dealing cocaine.  His newly adopted stage name? Rick Ross.

As Ross (the cocaine dealer) sat behind bars, Roberts (the rapper) rose to fame.   Roberts scored a hit with the song “Hustlin.’”  (Sample lyrics: “Everyday I’m hustlin’”—repeated 20 times.)

This time, Roberts’ notoriety didn’t escape Ross’ attention.  While behind bars, Ross learned that Roberts was using the name “Rick Ross.”  When he left jail, Ross filed suit, alleging that Roberts violated his right to publicity.

The Right of Publicity

The “right of publicity” gives you the right “to control the commercial use of [your] name, image, likeness, or other unequivocal aspects of [your] identity.”  The right “has been traditionally understood to apply only to the use of a person’s name or likeness.”  However, California “courts have expandedthe scope of the right . . . may apply to the use of virtually anything that evokes identity.”  For example, a federal appellate court famously found that a company violated Vanna White’s right of publicity by dressing a robot in a “wig, gown and jewelry” and posing the robot “next to a Wheel-of-Furniture-like game board.”

The right of publicity is not unlimited, however.  Courts have held that the right to prevent people from using your likeness must be balanced against the right of self-expression under the First Amendment.  To that end, the California Supreme Court has observed that you can use another person’s likeness if your use is “transformative”—that is, if it “adds new expression.”

The Court’s Decision

Against this backdrop, the appellate court held that Roberts did not violate Ross’ right of publicity because Roberts’ use of Ross’ identity was transformative.  The court explained that Roberts “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.”  In other words, “[u]sing the name and certain details of an infamous criminal’s life as basic elements, he created original artistic works.”

The court acknowledged that Roberts may have “initially gained some exposure through use of the name Rick Ross and the reputation it carried.”  But the court noted that “[i]t 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 . . . created.”

The opinion is entertaining—it’s not every day you see judges using the word “hustlin’”—and does a good job of grappling with a difficult question.  But it also leaves certain questions unanswered.  When did Roberts’ use of Ross’ likeness become transformative?  When he signed a record deal?  When he scored a hit single?  As law professor Shaun Martin notes,  “it’s a very difficult line to draw between ‘derivative’ and ‘transformative’ works.”

Figuring out where to draw that line is a question for another day (and another lawsuit).  The important takeaway (for rap fans, at least) is that Roberts can keep “hustling’”—and doesn’t need to change his stage name to do so.


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