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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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Happy Birthday…You’re Being Sued!

Have you ever noticed how people rarely sing “Happy Birthday to You” in movies and television?  Instead, people usually sing “For He’s a Jolly Good Fellow,” even though no one actually sings that song in real life.  Nevertheless, this falsification of reality happens all the time.  My favorite example was when the crew of the Enterprise sang “For He’s a Jolly Good Fellow” to Worf on his birthday (in Klingon, naturally).  At the end of the song, Worf observed, “that is not a Klingon song.”  Worf’s observation is ironic, of course, because even humans don’t really sing “For He’s a Jolly Good Fellow” to each other on their birthdays.  (Well, maybe the humans who speak Klingon do….)

The reason for this falsification of reality is two-fold.  First, “For He’s a Jolly Good Fellow” is clearly in the public domain (which means you can use it for klingonfree).  Second, Warner/Chappell Music claims to own the copyright to the song “Happy Birthday to You” and charges $1,500 for a “synch license” whenever someone wants to use it on screen.

And until now, no one has ever formally challenged Warner/Chappell’s copyright to the Happy Birthday song.

Clearance Culture

Helping to falsify reality in films and television to avoid the risk of litigation is actually a full time job for some people in Hollywood.  Sadly, we live in a clearance culture, where every scene must be analyzed from top to bottom for potential trademarked or copyrighted works that could give rise to infringement claims.  If third-party intellectual property appears in a film or television show, there is often a license involved.  While at first blush this practice of obtaining a license for anything and everything may seem as crazy as kittens fighting each other with lightsabers, creators actually have a very good reason to be cautious.

Examples of film and television producers being sued for using other peoples’ creations are not difficult to find.  Some notable examples include:  Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Company threatening legal action against an Italian film distributor over a film in which Jesus drinks a can of coke in the desert;Louis Vuitton suing Warner Brothers over the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Recordsover the song “Barbie Girl.”  In one particularly famous case, an artist named Faith Ringgold, who created a distinctive silk screen on a quilt, successfully sued BET and HBO over a film that showed her art in the background for less than 30 seconds of total air time.

In the case of the recent Happy Birthday lawsuit, however, the issue is not about whether the work can or cannot be used without permission.  Instead, the issue is whether the song is even entitled to copyright protection at all.

The Happy Birthday Lawsuit

Earlier this month, a documentary film company called “Good Morning to You Productions Corp.” filed a lawsuit in New York federal court seeking, among other things, a declaration that the song “Happy Birthday to You” is in the public domain.  The documentary film company is making a documentary about the Happy Birthday song which apparently started out as a song called “Good Morning to You” back in 1893.  The company claims that it has “irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

According to the documentary filmmakers, people started using the song “Good Morning to You” with the words “Happy Birthday to You” as early as 1901.  The filmmakers also claim that the lyrics to Happy Birthday to You were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church and that a copyright application was filed the following year.  These facts, if true, prove two things.  First, you can apparently make a documentary film about any subject these days regardless of how esoteric the topic might be.  And second, the Happy Birthday song may actually have fallen into the public domain.

The legal arguments involved in this case will involve the vagaries of pre-1976 Copyright Act law that, for most non-IP lawyers, would give Ambien a run for its money.  Of greater general interest, though, is the broader hypothetical question about whether singing Happy Birthday in a film or television show ordinarily can be done without permission.  In other words, is this lawsuit even necessary?

Happy Birthday Without Permission

Analyzing copyright issues can be complicated because there are always numerous points to consider.  For example, you might wonder why Happy Birthday is entitled to protection at all if people use it in a functional way (i.e., to wish someone a happy birthday).  The sculptural design of a “Ribbon®” bike rack, for example, is not copyrightable because it is a “useful article.”  There is a related concept in trademark law that applies to trademarks that have become so common that they now just refer to a generic product type.  Words like “Aspirin,” “Zipper,” “Heroin,” “Escalator,” “Yo-yo,” and “Thermos,” for example, all used to be entitled to trademark protection but have now become “genericized” and can be used by anyone.

However, the “useful article” doctrine in copyright law does not apply to music.  This means you cannot simply contend that using the Happy Birthday song is permissible without a license just because the song serves a useful function.

What’s left is a “fair use” defense.  As we have blogged about before, fair use is extremely context specific and must be analyzed on a case-by-case basis.  In any particular case, you would have to examine numerous factors, including how the song was used, i.e., whether the use was “transformative,” and how much of the song was used.  For example, a four or five second clip that shows a family member delivering a cake to another family member while singing Happy Birthday could be viewed quite differently than say a 30 second clip of a choir singing the entire song outside the context of celebrating someone’s birthday.  (Although query why anyone would ever sing Happy Birthday outside the context of celebrating someone’s birthday….)

Ultimately, while one may conclude that singing Happy Birthday in a film or television show might constitute a fair use under particular circumstances, there would always be the threat of a lawsuit from the rights holder.

On the other hand, after this new lawsuit is over, there may not be a rights holder to worry about.


“Where Are They Now”: Law Law Land Edition

This time last year, Law Law Land joined the hackneyed proud tradition of legal blogs offering year-end lists of cases to watch in the coming year (though in our defense, we did try to mix it up by reviewing totally absurd cases as well as totally important cases).  But “year in review” and “year to come” are cultural clichés that never held much appeal to me.  “Where are they now?” on the other hand?  That’s more my speed.  (Maybe that’s why I always adored the last five minutes of every episode of VH1’s Behind the Music, where the program would show the artist in their current, everyday life and tease the inevitable “impending comeback.”)  So what has become of those five big cases we told you to watch this year?  And did we pick good ones or not?  (Preview:  Yes, we did.  Oh shush, I don’t care if we’re biased.)

Viacom v. YouTube:  It’s the case that just won’t die.  When we last left Viacom — which led a cadre of content owners in a billion-dollar holy war against YouTube for its “Wild West” early years of unfiltered, infringement-heavy content — the company was appealing a federal court’s dismissal of its copyright infringement claims against YouTube.  And sure enough, in April 2012, the Second Circuit revived the case, holding that while the Digital Millennium Copyright Act (or DMCA) generally shielded YouTube from liability for its users’ acts of infringement, Viacom could continue to pursue the site based on allegations that YouTube willfully turned a blind eye to, or exerted “substantial influence” on, its users’ infringing activities.

Surprisingly, internet rights groups were largely pleased with the decision, which declined to create an affirmative duty for companies like YouTube to actively monitor their users’ submissions for infringing content.  Meanwhile, the decision has become the centerpiece for other, lower-profile litigations surrounding related issues.  For instance, a group of major record labels who have been locked in litigation against video service Vimeo for three years just moved to eliminate Vimeo’s DMCA defense based on the principles set out in the Viacom/YouTube decision.

Marathon v. Fox & SpillaneTalent manager Rick Siegel’s years-long crusade against California’s Talent Agencies Act — which notoriously allows clients to void contracts with, and even reclaim previously-paid commissions from, managers who “procure employment” for them without a state-issued agency license — seems to have gone nowhere in the year since we last wrote about it.  As of the end of 2011, Siegel’s long battle with his former client, actress Rosa Blasi, had morphed into a lawsuit by Siegel against his former attorneys, by which Siegel hoped (with the support of the talent management community) to use a procedural end-around to directly assault California’s law.

But while Siegel’s efforts may have failed, the talent managers of California have not gone gentle into that good night.  In November 2012, the National Conference of Personal Managers (of which Siegel is a member, though his direct involvement with its recent efforts is unclear) brought a direct constitutional challenge against the Talent Agencies Act in federal court — one where they get to challenge the law in the abstract, without worrying about a sympathetic celebrity litigant clouding the minds of judge and jury.  It may still be a long shot — anytime someone tries to claim that a law violates the Thirteenth Amendment’s prohibition on involuntary servitude, you have to raise your eyebrows a little — but it’s a clear sign that the ongoing conflict among agents, managers, and state labor regulators will continue to rage for months and years to come.

Scorpio Music v. Willis:  My god, can it be?  Yes, I think it is — that rare and beautiful lawsuit that actually results in somebody winning and somebody losing (rather than everyone settling and walking away)!

This case involved the efforts of Victor Willis, the original “Police Officer”/lead singer of the Village People, to reclaim his share of the copyright in the iconic “YMCA” (among several other Village people hits) from music publishers Scorpio Music and Can’t Stop Productions.  And you know what?  He did.  Willis’s lawsuit was the first major test case for the “copyright termination” provisions of the 1976 Copyright Act that are applicable to post-January 1, 1978 works, and widely considered the first major copyright termination case involving a songwriter.  The decision addressed many issues which will be vital to such songwriter termination lawsuits, including the right of a songwriter to terminate only his shareof a copyright grant without the cooperation of other co-authors (such as co-writers, bandmembers/performers, and, potentially even producers and sound engineers) — and sets the stage for possible future showdowns involving Bob Dylan, Tom Waits, Tom Petty, and other high-profile musicians who have sent copyright termination notices of their own.

Of course, no one is happier about this than Willis himself, who sounds like he was raring for a fight — and now relishes his victory.

Viacom v. Time Warner Cable:  When we wrote, in December 2011, about Viacom and Time Warner’s clash over Time Warner Cable’s launch of an iPad app that allowed subscribers to view Viacom channels on their mobile devices, the dispute was already see-sawing between “almost resolved” and“fighting to the death.”  But sure enough, by May 2012, the case had settled — with media outlets reporting (despite the confidential nature of the settlement) that Time Warner would not pay Viacom anything extra for iPad streaming of Viacom channels.

But that one settlement hardly resolved the future of the television industry, which continues to struggle to find a new business model in an on-demand, anti-advertising, rapidly technologically evolving age.  Less than two weeks after Viacom and Time Warner Cable settled their iPad dispute,ABC, CBS, NBC, and Fox all went to war with Dish Network over its new AutoHop feature, which allows subscribers to automatically remove commercials from their DVR recordings of broadcast TV shows.  In November, a federal judge in California denied Fox’s attempt to block Dish Network from offering the AutoHop service, but the victory for Dish Network was incomplete, as the judge indicated that she was inclined to accept some of Fox’s copyright infringement theories.  Dish Network and the networks have essentially picked up exactly where Viacom and Time Warner Cable left off, effectively seeking to define the future of television industry and technology in the courtroom instead of the R&D lab.  Great.

Zuffa v. New York:  In November 2011, the owner of Ultimate Fighting Championship brought a constitutional challenge to New York State’s then-14-year-old ban on the public exhibition of mixed martial arts, claiming that the statute violated UFC’s First Amendment, Fourteenth Amendment, and other constitutional rights.  While the case rages on, UFC has a few less weapons remaining in its legal arsenal.

In August 2012, federal judge Kimba Wood in New York dismissed two out of seven of UFC’s claims — based on the Equal Protection and Due Process clauses of the Fourteenth Amendment — after applying a highly deferential “rational basis” standard for assessing the New York state legislature’s legislative action (i.e., asking whether the legislature had some “rational basis” for the law).  A helpful note to plaintiffs in constitutional law cases:  if you’re challenging a law and your claim is subject to a “rational basis” review, you lose.

UFC’s First Amendment claims, and its challenges to the New York ban as being vague and overbroad, live on.


Do Those Copyright Lawsuits Which Do Not Kill Kanye West Only Make Him “Stronger?”

On a Saturday night in September, I took my wife to the first ever “Call of Duty” convention, hosted by Activision Blizzard inside a hangar on the old airfield where Howard Hughes built the Spruce Goose. Did I tell her ahead of time that I was taking her to a nerd convention where the only food available would be burgers and fries from a recreated fictional in-firstgame restaurant called “Burger Town?” No way! I told her I was taking her to a Kanye West concert! Which was kind of true.Kanye was the “big performance” at the end of the geekfest (which explains why increasingly better looking people started showing up as time went by). Unfortunately, even Kanye’s harem of near-naked dancers could not distract from the utter awfulness of Kanye’s performance. Worst. Concert. Ever. (And yes, he did have an I-am-a-Greek-god theme going on in the background.)

Continue reading the full story . . . »


10, 9, 8…Lawsuit? The Blow Up Over Beyoncé’s “Countdown” Choreography

About a year ago, I wrote my very first blog regarding copyright protection for choreography. In that post, I explained that even though dance is one of the world’s oldest art forms, the legal framework around copyright protection for choreography is still one of the least developed around. And, as our loyal readers will recall, the combination of law nerd/ex-dancer in me affectionately wished for the day that we would see a courtroom battle over choreography theft. Unfortunately for Beyoncé, the countdown may be over. (Cheesy pun intended.)

Most of you had probably never heard of Anne Teresa De Keersmaeker, a Belgian contemporary dance choreographer. That is, until the recent release of Beyoncé’s “Countdown” video. Almost immediately following the release of “Countdown,” Beyoncé faced allegations that she stole the choreography featured in her video from two of De Keersmaeker’s contemporary works, Rosas danst Rosas (1993) and Achterland (1990). While Beyoncé admits that De Keersmaeker’s works were “one of the inspirations used to bring the feel and look of the song to life,” her official statement — no doubt vetted by a team of lawyers — was careful not to admit that she (or, more appropriately, her team) actually copied De Keersmaeker’s choreography. Thanks to YouTube and those of you out there with way too much time on your hands, however, we can analyze De Keersmaeker’s claims for ourselves and determine whether “Countdown” crosses the line between inspiration and imitation.

First, take a look at Beyoncé’s “Countdown” video:

And then take a look at De Keersmaeker’s works featured in this split-screen comparison:

Yeah, that’s kind of hard to explain away.

Although De Keersmaeker claims that she is neither upset nor honored that Beyoncé copied her dance moves, she made a point to say that “there are protocols and consequences to such actions, and I can’t imagine [Beyoncé] and her team are not aware of it.” Is De Keersmaeker right about those consequences? That is, does Beyoncé’s “Countdown” video infringe De Keersmaeker’s copyright in her choreography? Let’s recap some of the things we have learned here at Law Law Land. Continue reading the full story . . . »


In Defense of Lindsay Lohan (But Not of Her Legal Claims)

I love Lindsay Lohan. Really, I do. I think she’s funny, smart, and an all around good time waiting to happen. Sure, as an actress, she’s had her share of ups and downs. But who hasn’t? As a singer…well…mostly just downs. She’s also been unrelentingly stalked by paparazzi for the entirety of her adult life, getting caught in far more than her share of compromising moments in the process. Well I say, leave Lindsay alone! If I had cameras following me since before I started shaving, I can assure you, it would not be pretty either (riotously entertaining, yes, but not pretty). So I try to cut Lindsay a lot of slack. But man, oh man, is her latest escapade testing the limits of my adoration.

Fresh off settling her lawsuit against E*Trade for a Super Bowl ad featuring a “milkaholic” baby named Lindsay and threatening (via Momager Dina Lohan) to sue the producers of Glee for some off-color Lohan-based Spanish lessons, Lindsay recently filed suit against rapper Pitbull for using her name in his song “Give Me Everything.” The offending lyric in question: “Hustlers move aside, so I’m tiptoein’, to keep flowin’ / I got it locked up like Lindsay Lohan.” Frankly, it is difficult to fully convey the absurdity of this lawsuit. Nevertheless, my enduring loyalty demands that I try.

Holding my nose and looking a little deeper, I see there are two claims apparently being made here: defamation and right of publicity. (From the outset, I should note that Pitbull’s stated defense of  “I thought it would be helping [her] career and keeping [her] relevant”doesn’t fly.) But let’s parse each claim and see if there’s any chance that my hero will succeed. (Spoiler Alert!!! No, there is not.) Continue reading the full story . . . »