Freeway Ricky Ross’ Trademark Case

As previously reported, Freeway Ricky Ross lost his trademark infringement claim against the Rapper Ricky Ross in the US District Court of Southern California.

I am not an apologist for ‘criminals’. However I found the reaction to Freeway Ricky Ross’ trademark loss to the rapper Rick Ross disturbing.

To set the record straight, the Court heard only the trademark claim, not the misappropriation of likeness or rights of publicity claim.

The Second Restatement of Torts (California) provides:

652C Appropriation of Name or Likeness.

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff’s name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness

There is a well developed body of jurisprudence which has evolved regarding the rights of publicity in California. I have seen it written time and time again that this type of claim could “only happen in America“. However this kind of claim is recognised in other countries apart from America.

California case law
A common law cause of action for appropriation of name or likeness may be pleaded by alleging:
1. the defendant’s use of the plaintiff’s identity
2. the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise
3. lack of consent or authorisation
4. resulting injury.”
Eastwood v. Superior Court

In this situation, we had a college drop-out and ex-correctional officer set out to be a performer who deliberately branded himself opportunistically as a performer with the assistance of his record company to capitalise on the criminal history of an ex-drug dealer. He chose the stage name and signed his first record deal based on a song where he played the role of Ricky Ross, a drug dealer. He was capitalising on the criminal history of another.

People find that proposition repugnant, based on the fact that one should not profit from their own illegal acts. However it is clearly a case of misappropriation of Freeway Ricky Rosses’ name and likeness.
The rapper conceded this in Court. The law throws it protection in California and European country around depredation from by poseurs and impersonators.

As the Judge correctly acknowledged, there is a a legal right known as image rights or rights of publicity in American law, however under State law the Judge was unable to deal with this aspect of Freeway Ricky Ross’ claim. This claim has to be brought in a State Court. He is free to re-file in state court the misappropriation claims at a future point in time.

It has been the case that a person may have exclusive rights in their identity, persona, image, voice or ‘likeness’. You may not be able to prevent someone having the same name as you, but you are able to prevent a person from acting in a manner that causes other people to think that they are in some way associated with you.

This is exactly what Rapper Ricky Ross and his record labels set out to do to catapult the rapper to fame and fortune. I can see why other prima donnas and maybe even Princetown graduates would cynically look for a gangster like persona to escape a job they apparently despised and were ashamed of.

Freeway Ricky Ross used his name lawfully in commerce in the“100 KILOS” movie. Lets not forget that his story became nationally known when he was linked to the infamous CIA Iran-contra scandal involving the U.S. military, corrupt foreign governments, drug cartels, guns, wars, and politics, during Reagan’s administration. This was a time when corruption was endemic amongst law enforcement officers.

Freeway Ricky Ross, it is true, has spent the better part of 30 years fighting the judicial system and I suspect that he will continue fighting the court of public opinion in America who appear to have a very short memory.

The fact that the rapper engaged in an unauthorised use of Freeway Ricky Ross’ name and persona is an inescapable fact, like it or not.
Are we going to stop those who profited from their wrongdoings but whose crimes were never punished from writing books and profiting from them, or just those who were entrapped by them?

The lawful use of Freeway Ricky Ross’ occupation as a motivational speaker to youth, ex-offenders, and in entertainment matters also marks the use of his name. That is what doesn’t seem to have registered in the minds of the public in the aftermath of this lawsuit.

His name has gained goodwill and his legacy should be preserved if for nothing else than to remind us of those sordid crimes and the history that the US conveniently wishes to forget.

I don’t know Freeway Ricky Ross but I don’t think he articulated his case very well except when he said “My Name is My Name”. I have found it rather tragic that people have forgotten that he is a person who has served his time, irrespective of the crimes that he has committed. He is also a person who is trying to re-establish his life, something very hard for someone of such notoriety.

Lets not forget that his name came to prominence as a result of the work of Pulitzer winning author Gary Webb in his article “Dark Alliance“, and that his story featured in a documentary “American Drug War” in which the activities of the CIA, Oliver North and other individuals from drug dealers to former drug enforcement agents was revealed.

This time Ricky Ross is fighting not for his freedom, but for his identity. The French have a doctrine called the ‘right to be forgotten‘ or the right of redemption.

The commercial misappropriation of a person’s likeness, image, identity or persona, recognised by California law and also by European countries, is a quasi-intellectual property right but actually originates in privacy law and a close connection with the tort of defamation. Publicity rights in the US evolved out of the tort of privacy. Interpreted very generously, publicity rights, a term sometimes used interchangeably with personality rights, is the right of every individual to control commercial uses of their name, image, likeness, or some other identifying aspect of identity. It’s application is limited only by the application of the First Amendment. There is a great degree of variance in the recognition of the right across US States, with some States recognising the rights of publicity as surviving the death of the individual. California recognises both statutory and common law species of the right, and being a proprietary right the rights devolve to a person’s heirs.

In Dillinger’s Inc. v. Jeffrey G Scalf, an Indiana Court of Appeals Court held that Dillinger’s restaurant have violated the publicity rights of Jeffrey Scalf, the grandnephew of gangster and bank robber John Dillinger in using the Dillinger image, likeness and name in association with the restaurant. This and other cases under Indiana’s overly broad application of publicity rights has attracted condemnation for the opportunistic way his relative has used it to extract money for uses of Mr Dillinger’s publicity rights.

There is a lot of litigation on the rights of publicity in US case law and it isn’t known how a Court would rule in Ross’ case unless of course Ricky Ross pursues his claim in a State court which doesn’t seem likely. Leaving the law aside I cannot help but have some sympathy for Ross who appears to have been portrayed as a greedy opportunistic publicity seeking ex-con.

A person’s right to their personality and to control their identity is seen differently under European law. It’s an issue of impersonation or stealing of another person’s identity. It has little to do with whether someone is well known. It is more to do with the right to control one’s identity.

It is analogous to celebrities who go to English courts and New Zealand Courts asserting that they have a right to control their identity, founded upon a common law breach of confidence or a tort of privacy.

The issue is that someone shouldn’t be able to use another person’s identity to promote their goods and services. The rapper openly admitted that he used Ricky Ross’ image and likeness to adventitiously promote himself when the rapper was incarcerated.

Let us assume that Ricky Ross first lawfully used his name in trade or commerce when he made the movie “100 kilos” by licensing his name and that he wishes to continue to give motivational speeches and reform his own life and those at risk of turning to the not to glamorous lifestyle of drugs and crime for a living.

Does Freeway Ricky Ross not have some entitlement, having served his time and been a pawn used by the Government and ‘lawful‘ drug enforcement agencies, to use his experiences to try to reach others, including the youth of America?

Does he not have the right to control his image at a time he is engaging in acts which are positive and beneficial to the youth of America at risk of going down the wrong path in life as he did.

It appears that rapper Ricky Ross’ perpetuation of use of his past criminal persona which he is celebrating and commercially exploiting interferes with his right to move forward with his life and positively influence future generations.

All for the sake of some false notion of glamour associated with hip urban rap culture and crime. Whilst the case has been described as bizarre, I cannot help but think that this depiction is a perversion.
I can certainly think of better ways to impart ‘culture’ to those who follow rap music than to glorify this kind of image.

My preference would be to buy some books, educate myself about the Iran-Contra scandal, watch a documentary about the ‘law enforcement officials’ embroiled in this scandal, and learn what I can about how NOT to become caught up in this kind of sordid affair.

We all consume culture differently, but I would prefer to spend my money this way than on a rap singer who uses a rather one dimensional synthetic representation of an ex-criminal dealing (present tense) cocaine to prop his image up in the eyes of the consuming public. For it diverts attention away from the real issues in society relating to power politics and survival.

Do we prevent George W. Bush or Donald Rumsfeld from profiting from their memoirs even though we know that technically both have been involved in behaviour that led to the deaths of many innocent people.

Clearly Ricky Ross is responsible for his own fate, and lived in a messed up world. I hope the reception his rather bold lawsuit has received is not an indication about the messed up society he still lives in.

In my mind, this case wasn’t about greed or a $10,000,000 payout. It was about history and how quickly it is forgotten, and the value as a society we place on entertainers, glorification and image creation, ignoring the realities of the lessons history teaches us.

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