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| Rick Ross (left); 50 Cent (right) |
Rappers 50 Cent and Rick Ross have been embroiled in a public dispute for more than a decade; what began with diss tracks back-and-forth has culminated in an important IP decision from the Second Circuit Court of Appeals. Considering the right of publicity afforded under state law when a copyrighted work is implicated, the Second Circuit held that 50 Cent’s right of publicity claim is preempted by the Copyright Act in In re Jackson.
Background
Curtis James Jackson III is a rap artist from New York City who performs under the stage name, 50 cent. He rose to stardom with his first album, Get Rich or Die Tryin’ in 2003; the success of the album was driven by the lead single, In Da Club. That song is also the focus of his legal battle with Rick Ross.
William Leonard Roberts II, better known as Rick Ross, is a rapper who hails from Florida; he became popular following his debut single, Hustlin’. His stage name and rap persona invoke former cocaine kingpin, Freeway Ricky Ross; Roberts defeated Ross’ claim of publicity rights infringement in 2013. The court ruled that Roberts’ use of the name and persona were protected expression under the First Amendment.
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Rick Ross’
Renzel Remixes |
Legal Dispute
In 2015, Rick Ross released Renzel Remixes, a mixtape in which Rick Ross raps over 26 sampled songs; he combines the original instrumentals – and sometimes vocals – from these songs with his own rap verses to create derivative works. One track on the mixtape, In Da Club (Ft. 50 Cent) consists of Rick Ross rapping over the original instrumental from In Da Club, ending with the original hook and outro from 50 Cent. Although 50 Cent never gave his permission to use the instrumental or vocals, he is powerless to stop this derivative through copyright law; 50 Cent does not own the copyright to In Da Club, as he transferred his rights in the song to his then record label, Shady/Aftermath Records.
So, what 50 Cent did was to bring a publicity rights claim under Connecticut common law. 50 Cent claimed that the use of his voice and stage name in the remix misappropriated his name, performance, and likeness. The district court ruled that the state publicity right was preempted by federal copyright law; additionally, the court ruled that 50 Cent surrendered his publicity rights when he transferred the song to his record label. 50 Cent appealed the ruling on preemption, which the Second Circuit addressed in great detail.
Second Circuit
The appellate decision begins with a quick refutation that 50 Cent has surrendered all publicity rights when he transferred the song to his record label; the contract transferred publicity rights for the duration of his recording contract, which ended in 2014. Although 50 Cent regained his publicity rights at the end of his contract, he never reacquired the copyright for In Da Club; the remainder of the decision centers on preemption of the right of publicity by federal copyright law.
Implied Preemption
The Implied Preemption doctrine provides that the application of a state law may be precluded by a federal law when, “under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Some state laws serving a distinct interest, such as those regarding libel and fraud, may pose a hindrance to the full exercise of the rights afforded under copyright law but do not conflict with the purpose and objective of the Copyright Act; thus, these laws are not preempted by the Copyright Act.
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Atticus wants the top perch
but he was preempted by Echo |
In Bonito Boats v. Thunder Craft Boats, a case concerning patents (federal) and unfair competition (state), the Supreme Court provided a two-element analysis for implied preemption; in the 50 Cent case, the Second Circuit applied this analysis in the context of copyright and the right of publicity. Regarding the right of publicity, claims that interfere with a copyright holder’s exercise of the rights afforded under the Copyright Act are preempted unless the claim serves a serves a distinct state interest. Those claims that serve such an interest are then balanced against the potential for conflict with the operation of the federal copyright system.
The Court ruled that Rick Ross’ use of 50 Cent’s voice and stage name does not implicate a substantial state interest in the right of publicity outside the scope of the Copyright Act. Ross’ use of 50 Cent’s voice was an inevitable result of his use of the copyrighted work, In Da Club; his use of the name “50 Cent” served to accurately identify the source of the copyrighted work. Because Ross’ actions did not imply an endorsement from 50 Cent, were not derogatory toward 50 Cent, and did not invade his privacy, no state interest distinct from the purpose of the Copyright Act are served by 50 Cent’s publicity right claim.
Regarding the second element, the Court identified two sources of conflict between this assertion of publicity rights and the Copyright Act. First, allowing 50 Cent’s claim to proceed would have a substantial chilling effect on the exploitation of copyrighted works containing depictions of or appearances by real people. Uses that are defensible fair use – or even the use of works in the public domain – may nonetheless be prevented in spite of the express policy of the Copyright Act.
Secondly, allowing an artist who has transferred his rights to a record company to exert control over subsequent uses of a work through such a claim would undermine the exclusive right of the record company to exercise control over reproduction of the work. Although this argument is less persuasive in this case – noting that Ross has no rights in the work rather than exclusive rights in it – the policy considerations in totality support applying the doctrine of implied preemption in this case.
Statutory Preemption
The Copyright Act also contains a provision that explicitly provides for preemption:
“On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” Section 301 (a)
The analysis for statutory preemption also consists of two prongs. First, the court determines whether the work implicated by the state-created right falls within the subject matter of copyright as a work of authorship. Then, under the second prong, the state-created right is preempted if the right is “equivalent to any of the exclusive rights within the general scope of copyright.”
Prong One
In this case, prong one requires a determination of the gravamen of 50 Cent’s claim; if the gravamen is the publicity right in his voice and stage name, these fall outside the subject matter of the Copyright Act. On the other hand, if the gravamen is the sample in 50 Cent’s musical composition and audio recording, it falls squarely within the subject matter of the Copyright Act.
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| Atticus gives credit on all of his remixes |
Rick Ross used 50 Cent’s voice as part of an expressive work for its own value, rather than to exploit 50 Cent’s identity. Labeling this work with the artist responsible for the original is a means of giving credit to 50 Cent, rather than implying his endorsement of the work. It is commonplace in hip-hop when releasing a remix to give credit to the original artist in this fashion. This practice is further evidenced by the context of the mixtape; tracks from at least 26 different artists are remixed on the tape with 18 tracks identifying the artist in the title. Because the gravamen of 50 Cent’s claim concerns the use of the copyrighted work rather than the exploitation of his identity, the claim falls within the subject matter of the Copyright Act.
Prong Two
The second prong is met so long as the right asserted is equivalent to any of the exclusive rights afforded by the Copyright Act; the district court had ruled – “without support” – that the publicity right under Connecticut law requires that misappropriation be a “commercial” use. The Court dismissed this contention, noting that Connecticut’s right of publicity does not explicitly involve a commercial use element; even if it did, the Second Circuit does not consider a commercial use element to create a meaningfully distinct claim from a claim for wrongful copying. Because 50 Cent’s claim is merely a “thinly disguised effort to attack [Ross’] use” of the song, his publicity rights claim is statutorily preempted by the Copyright Act.
Stage Name
50 Cent argued that while the publicity rights claim concerning the use of his voice may be statutorily preempted, his stage name could not fall under this preemption because such a name is categorically excluded from copyrightable subject matter as de minimis authorship. However, because this claim is not based on allegations of false endorsement and would substantially interfere with the federal copyright framework, the Court ruled that the claim must be dismissed.
Comment
This Kat is pleased with the outcome in this case; 50 Cent’s claims would effectively grant him an exclusionary stake of the copyright in In Da Club. In certain respects, 50 Cent’s claims fall within an assertion of moral rights – moral rights, however, are not explicitly recognized under US law. As a result, there are interesting parallels between this case and Gilliam v. American Broadcasting Company, which concerned ABC’s editing of Monty Python.
In that case, the moral right against mutilation of an author’s work was adjudicated by analog through a claim under the Lanham Act. By editing the work in manner that mutilated the content (i.e., removing punchlines) and then broadcasting it as Monty Python, ABC passed off the improperly-edited piece (a good) under the Monty Python mark; this serves as the basis a claim under the Lanham Act.
The distinction between Gilliam and this case lies in the presentation of the subsequent work. Rick Ross released a mixtape where rapped over songs he liked from a variety of artists; he indicated the artists behind the original works of authorship that he used, not to pass off his remixes as works of the original artists but to give those original artists credit for their works. Nothing about ABC’s presentation indicated that they were showing a derivative work based upon Monty Python; rather, ABC portrayed their edit as the original work of Monty Python.
