What legal rights do I have to my own name? (re: Rick Ross)

[Starbury]

For the past few years, a rapper going by the name “Rick Ross” has built a reasonably successful music career by putting out songs that detail his fictional life as a sort of high class drug dealer. His stage name is a reference to “Freeway” Ricky Ross, a real life drug dealer who was given a life sentence for a cocaine conviction. The rapper’s real name is William Roberts and, prior to signing a record deal, he worked as a corrections officer (which is to say that he lived a life quite different from the real Ricky Ross).

In 2009 Ricky Ross’ sentence was reduced, and he was released from prison. Last month, Ricky Ross filed a lawsuit against the rapper Rick Ross for “profiting off the unlawful use” of his name. Here’s one article discussing the lawsuit –> http://www.bloginity.com/entertainment/music-entertainment/rick-ross-sued-by-rick-ross-drug-dealer-targets-rapper-in-lawsuit/25717/

So this brings up my question, which is: what legal rights do I have to my own name in a situation like this? Would it matter if I were a celebrity/political/historical figure (in the case of a historical figure, I’m wondering if the deceased’s estate has some right to sue)? Is just the use of my name by someone else enough for me to win a lawsuit, or does it have to include something that connects the name to my actual life (for example, not just rapping under the name Rick Ross but also rapping about being a drug dealer)?

Thanks for the help.

[Annie-Xmas]

The short answer is: NONE. A name cannot be copywrited and furhermore, anyone can call themselves whatever they want, provided it’s not to defraud. So if Rick Ross is convicted of raping and murdering 19 people and a goat, you have no recourse. Of course, if someone states that you are the goat raping Rick Ross, you can sue for slaunder.

There was a marvelous episode of Seinfeld where Elaine was dating someone named Joel Riffkin, same as a then notarious NJC serial killer. She suggested he change his name to one used by a football player. One of her choices was “OJ.” Did I mentioned the show aired six months before the whole OJ bruhaha?

A name can be trademarked and several are. Andrerw Lloyd Webber comes to mind. He didn’t want peopler saying that someone named ALW said good things about a show.

[md2000]

There was a case many years ago where the family wine business (NY state?) was sold to a big conglomerate. When a son decided to start is own wine business with the same name (i.e. Smith Wines instead of Smith Estates Vineyards) the whole trademark and “likely to cause confusion” thing came into play. He lost.

As mentioned, you cannot reserve all rihts to a name. However, if you establish a name in whatever - wine, music, construction, lawyer firm - and then take the necessary steps to make it your trademark, the next Smith-come-lately must pick a different business name if they want ot be in a similar business.

[Acsenray]

@Annie-Xmas

A name can be trademarked and several are. Andrerw Lloyd Webber comes to mind. He didn’t want peopler saying that someone named ALW said good things about a show.

A person’s name can become a trademark only to the extent that it’s being used as a trademark. Andrew Lloyd Webber can’t stop someone else from having the personal name “Andrew Lloyd Webber.”

To the extent that someone is using a name in a fraudulent manner, to confuse people with regard to his or her identity, that’s a different issue.

But, basically, you have no exclusive rights in your name. You may, however, have exclusive rights in your identity, persona, image, and voice. That is, you can’t stop someone from having the same name as you, but you can stop a person from acting in a manner that makes others think that he or she is you.

[Kimmy_Gibbler]

@Annie-Xmas

The short answer is: NONE.

Alas, the correct answer is rather different.

The primary cause of action implicated here would be appropriation of name or likeness. The Restatement (Second) of Torts 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.

Comments:
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.

The elements identified by one California court (a state with a well-developed body of law on the right of publicity) are:

“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; and (4) resulting injury.” Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983)(internal citations omitted).

In the case of the drug dealer and the rapper, we have a performer who chose a stage name deliberately to capitalize on the life history of another — a seemingly clear-cut appropriation of the name and likeness of another. Were this just a coincidental sharing of a common name, the analysis would be much different. Nevertheless, I do remember once hearing that there was a SAG rule that prevented member actors from sharing the same name. I have no idea if this is the truth; but celebrity is a valuable interest, and the law does protect it from depredation by poseurs and impostors.

ETA: Do not bother pointing how “ironic” this all is, given my screenname. Thanks.

[Starbury]

Thanks for the responses thus far. I hadn’t considered the idea of trademarking your own name. Through google, the examples I’ve found for trademarking seem to suggest you need to already be famous (ex. Morgan Freeman) and/or have some sort of commercial interest (ex. Ralph Lauren) in need of protection to get a trademark on your name. I couldn’t find any examples of a “regular” person trademarking their name to preemptively prevent someone else from using it.

Let’s use a hypothetical John Doe as an example. Say John Doe is a rather unexceptional entry level office worker. Is there any way for him to trademark his name?

One more question: Supposing that Ricky Ross had trademarked his name, would the fact that his fame is a result of illegal activity have any bearing on whether or not he can defend his trademark? I ask because it’s my understanding that you yourself cannot profit from a criminal act (ex. a serial killer can’t make money by selling their autobiography), so would you have any right to prevent someone else from indirectly making money off of your criminal act?
And on preview, I now see Kimmy Gibbler’s response regarding the appropriation of one’s likeness. My question in regards to that would be: can someone claim a “resulting injury” if that injury is a result of their criminal activity? (That is to say, Ricky Ross is only in a position to be injured because he became famous through drug dealing; does that matter?)

[Deeg]

What the heck is a high-class drug dealer?

[Starbury]

@Deeg

What the heck is a high-class drug dealer?

The difference between “high” and “low” class, if one were to base the distinction on Rick Ross’ lyrics, is the difference between selling in bulk out of your own private jet vs. selling vials on the street corner. Though I get your point.

[Acsenray]

@Starbury

Thanks for the responses thus far. I hadn’t considered the idea of trademarking your own name. Through google, the examples I’ve found for trademarking seem to suggest you need to already be famous (ex. Morgan Freeman) and/or have some sort of commercial interest (ex. Ralph Lauren) in need of protection to get a trademark on your name. I couldn’t find any examples of a “regular” person trademarking their name to preemptively prevent someone else from using it.

To register a trademark, you have to show that you are using the relevant term as a trademark. To use a term as a trademark, you have to use it as the indicator of the source of goods or services. Using a name as a name doesn’t qualify.

Let’s use a hypothetical John Doe as an example. Say John Doe is a rather unexceptional entry level office worker. Is there any way for him to trademark his name?

Only if he is using his name as the indicator of the source of goods or services. If all he’s doing is working as an entry-level office worker, then it’s extremely unlikely he’s doing anything that will qualify.

One more question: Supposing that Ricky Ross had trademarked his name, would the fact that his fame is a result of illegal activity have any bearing on whether or not he can defend his trademark?

In order to register a trademark, you have to demonstrate “lawful use in commerce.” If your use in commerce is unlawful, I don’t think you’ll get a registration in the first place.

And just to emphasize, you can’t register a mark based solely on “fame.” You have to show use in commerce as the indicator of the source of goods and services.

And on preview, I now see Kimmy Gibbler’s response regarding the appropriation of one’s likeness. My question in regards to that would be: can someone claim a “resulting injury” if that injury is a result of their criminal activity? (That is to say, Ricky Ross is only in a position to be injured because he became famous through drug dealing; does that matter?)

Commercial misappropriation of a person’s likeness, image, identity, persona, etc., is a kind of intellectual property violation but it originates in privacy law. It’s an issue of impersonation or stealing your identity. It doesn’t have anything to do whether you’re otherwise well-known or why you’re well-known. The issue is that someone can’t use your identity to promote their own goods and services. It’s not a question of your name, per se.

[Jormungandr]

I can’t find a reference on it, but didn’t Frank Sinatra sue a restaurant for calling itself “Sinatra” claiming they were trying to cash in on his name?

[Acsenray]

It’s entirely possible he did. But that would likely be a commercial misappropriation of identity claim, not a trademark claim.

[DCnDC]

The band Blondfire was originally called “Astaire” until Fred Astaire’s estate threatened them with a cease-and-desist order.

[md2000]

A trademark is associated with something. As mentioned in an earlier post, famous names have some sort of wider protection - which is why you can’t be Sinatra restaurant or Coca Cola Trucking; the possibility of confusion is obviously there. But you cannot just stake a claim to all uses of John Doe. If you used “John Doe Accounting” or “John Doe at Law” then you can stop someone else from trying to use the same name in the same business. But unlike “Coca Cola Trucking”, nobody is going to confuse your one-man accounting office with John Doe Trucking.

The good example of this is Apple. They were in the record business - music and lyrics, Beatles, etc. Some other guys could come along and start a California computer company, use the same name, and nobody would think there was any connection. Worked great for many years, since as we know, Apple Computers made computers only had nothing whatsoever to do with the music business. When the computer company got too famous, their lawyers and Apple Records’ lawyers sat down, had a little chat, and worked out a deal.

Once the iPod became big they had to have another little chat. It was simpler to come to some sort of agreement than to waste it all on court time…

[Acsenray]

@md2000

A trademark is associated with something. As mentioned in an earlier post, famous names have some sort of wider protection - which is why you can’t be Sinatra restaurant or Coca Cola Trucking; the possibility of confusion is obviously there. But you cannot just stake a claim to all uses of John Doe. If you used “John Doe Accounting” or “John Doe at Law” then you can stop someone else from trying to use the same name in the same business. But unlike “Coca Cola Trucking”, nobody is going to confuse your one-man accounting office with John Doe Trucking.

Just to be clear here, there are mixed issues of trademark infringement, trademark dilution, and commercial misappropriation in all these examples. Each thing has different standards.

Furthermore, when it comes to names of law firm, specifically, they are regulated by state law. And it’s conceivable (although I’m not sure about it) that some states might give a licensed attorney the absolute right to use your own name in the name of your law firm. Or at the very least, you can your your name qua name when practicing law.

[Telemark]

@md2000

There was a case many years ago where the family wine business (NY state?) was sold to a big conglomerate. When a son decided to start is own wine business with the same name (i.e. Smith Wines instead of Smith Estates Vineyards) the whole trademark and “likely to cause confusion” thing came into play. He lost.

This is the Taylor Wines family, and the resulting creation of Bully Hill Vineyards.

[Markxxx]

The Screen Actors Guild does have a rule that two actors/actress cannot have the same name. This is a SAG rule not a law. Of course in most places you can’t work on a movie or a union movie unless you are a member of SAG and you can’t be a member of SAG if you take someone else’s name.

This is why you have Michael J Fox, instead of Michael Fox. Or JM J Bullock, because there was already a Jim J Bullock (He quit allowing JM J Bullock to assume the name).

Or Miss America Vanessa Willams becoming Vanessa L Williams. However because the now Vanessa L Williams was so much more famous the thing went to arbitration and SAG ruled as long as there is no clear conflict, both ladies can use the title Vanessa Williams.

The problem with the OP senerio is the fact states have laws that prohibit anyone from profiting from their crime. Even if the guy in prison could prove that the rapper stole his name, what good is it? He can’t profit from his criminal activities and it seems likely it’d be easy to prove collecting a judgement would be profiting.

My guess (and it’s only a guess) is the whole thing is a set up. This way the performer gets free publicity and the criminal will drop the charges and get a bit of money, 'cause he help the performer.

As for trademark names, generally you cannot do much for a person’s name. In Illinois we had a landmark case of Joel Hyatt the lawyer versus Hyatt Hotels. The end result was that after years of legal stuff, the courts rule Joel Hyatt COULD use the name “Hyatt Legal Service” provided he always put a disclaimer such as “Not affilitated with Hyatt Hotels”

As for Trademarks this has become a very tricky area in recent years due to the Internet.

You used to have various tiers of Trademarks and you still do, though the Internet is chipping away at it.

For instance, Sears is a national name. No one in the US in all 50 states is gonna say “What’s Sears?” Same for Coca-Cola or Pepsi. These are trademarks that a firmly and historically established as natinonally recognized trademarks.

But suppose you had an Acme Hardware in Bangor Maine. And an Acme Hardware in Biloxi, Mississippi, and an Acme Hardware in Helena, Montana.

All three can sucessfully trademark their name. Why? Because they are local businesses and a trademark in a local area is valid for a local only. In otherwords Acme Hardware, in Helena wouldn’t have much success with a trademark lawsuit in Bangor. But Acme Hardware in Helena woud have much more success in preventing someone from opening Acme Hardware in Billings, MT or such.

Now this is where the Internet comes in. If you do a Google search for Acme Hardware, suddenly it’s not local. All three Acme Hardware stores would come up. Who knows in which order.

This is why the once accepted “unoffical” way of having levels of trademarks (again this was unoffcial) is being chipped away at.

[Ionizer]

Only posting here to say that I saw, coincidentally, in this thread (#7 posting) that someone has already taken the URL rickross.com. Gave me a weird deja-vu seeing that link having just seen this particular thread’s title a moment before.

Thought I would mention it for ya. I have no worthy input as to the original questions, though (sorry).

[Starbury]

@Markxxx

My guess (and it’s only a guess) is the whole thing is a set up. This way the performer gets free publicity and the criminal will drop the charges and get a bit of money, 'cause he help the performer.

That’s an interesting suggestion. I wouldn’t be surprised if there was some truth to that.

And Ionizer, you might be interested in this post from 2006 debating whether the anti-cultist Rick Ross would make a better rapper than the current Rick Ross: 33jones -- I know Rick Ross, the Real Rick Ross

[Polycarp]

@md2000

There was a case many years ago where the family wine business (NY state?) was sold to a big conglomerate. When a son decided to start is own wine business with the same name (i.e. Smith Wines instead of Smith Estates Vineyards) the whole trademark and “likely to cause confusion” thing came into play. He lost.

As mentioned, you cannot reserve all rihts to a name. However, if you establish a name in whatever - wine, music, construction, lawyer firm - and then take the necessary steps to make it your trademark, the next Smith-come-lately must pick a different business name if they want ot be in a similar business.

To be totally clear on this, what happened is that a conglomerate that owned Smirnoff’s vodka and Coca-Cola decided to go into the wine business and bought the Taylor wineries (Lake Country, etc.) from the Taylor family, including the rights to the Taylor name as applied to winemaking. Family blacksheep Walter J. Taylor disagreed but ws outvoted in the family company, and the sale, including name rights, went forward. Walter then went into business by himself at the Bully Hill winery, not a part of the Taylor family holdings now the property of the conglomerate. When he started selling wines with his full name prominent in the promotion of them, the conglomerate sued, because they owned the rights to use the Taylor name in relation to producing and selling wine – and Walter was, willy-nilly, included in that agreement as former part-owner of the family wineries. Hence the courts ruled that he could not market wine under his own surname, because he (as part of a corporate body) had sold the rights to it o someone else. He was of course free to start the Taylor Widget Co., buy some cows and start up the Taylor Dairy, purchase a couple of planes and an abandoned airfield and start up Taylor Aerospace, etc. But if he was going to make wine (his lifelong career) he needed to do it in another brand name and without using his surname – which he did; Bully Hill Wineries with bottler Walter J. is an ongoing business, last I heard, but Walter J. “signs the labels” (has them printed with his signature, actually) with only given name and middle initial.

The precedent is not that you cannot use your own name if someone else has trademarked it – there’s at least one McDonald’s Restaurant around that demonstrated to the court that they were in business under that name before the guys with the clown mascot and the golden arches moved into that market – but that you cannot sell rights to something, including your own name if it was part of a brand name for a product, and still continue to use it in competition with the people you sold the rights to.

[Sailboat]

@Markxxx

My guess (and it’s only a guess) is the whole thing is a set up. This way the performer gets free publicity and the criminal will drop the charges and get a bit of money, 'cause he help the performer.

That’s just the way Rick rolls. <–imagine there’s a link here that you’re too smart to click.