“Sharon, Sharon, Sharon stoned” is a line you may have heard before—over and over again in rapper Chanel West Coast’s 2018 single “Sharon Stoned.” Recited eight times in each of four choruses (not to mention in its title), the line seems to be an integral part of the three minute song.

Actress Sharon Stone has also heard this, and she isn’t pleased. She sued the rapper, born Chelsea Chanel Dudley, in federal court in the Central District of California (2:19 Civ. 9492). Stone asserted a Lanham Act false endorsement claim, as well as right of publicity violations under California Civil Code § 3344 and common law, pointing out that the song uses Stone's name repeatedly without her permission, and that the music video reenacts Stone’s iconic scenes from movies like Basic Instinct and Casino. Stone also takes issue with how the song openly endorses drug use, playing on her name in a way that associates her with marijuana.

All this may be irrelevant if Dudley can show that the song is a protected First Amendment expression not subject to right of publicity or false endorsement claims. In particular, she'll have to show that the use of Stone's name in the song passes the Rogers v. Grimaldi test, articulated by the Second Circuit and adopted by the Ninth Circuit in Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002). Under Rogers v. Grimaldi, use of a trademark or other identifying material (here, Stone's name) in an expressive work is protected under the First Amendment unless it has "no artistic relevance" to the underlying work, or, if there is relevance, the use "explicitly misleads as to the source or the content of the work." 875 F.2d 994, 1000 (2d Cir. 1989). As for right of publicity claims, use of a celebrity's name in an expressive work will be protected unless it is "wholly unrelated" to the content of the work or was "simply a disguised commercial advertisement for the sale of goods and services." Id. at 1004. Rogers v. Grimaldi involved unauthorized use of a celebrity's name (Ginger Rogers) in the title of a fictional movie called "Ginger and Fred," but the Ninth Circuit has held that the same analysis applies where “the trademark or other identifying material in question was used in the body of a work rather than in the title." Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1241 (9th Cir. 2013). Sharon Stoned uses Stone’s name in both the title and the body of the song.

Dudley also has to deal with the precedent set by an analogous case, Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003), where Rosa Parks brought Lanham Act and right of publicity claims against the rap duo OutKast and its record label over the unauthorized use of her name in the song Rosa Parks. Although OutKast prevailed on a First Amendment defense at the district court, the Sixth Circuit reversed, applying the Rogers v. Grimaldi test and holding that the question of whether the reference to Parks had any artistic relevance was an issue of material fact precluding summary judgment. The Sixth Circuit was particularly swayed by the fact that the song—though titled "Rosa Parks" and referencing a bus ("Ah ha, hush that fuss / Everybody move to the back of the bus . . .")—had no apparent artistic or thematic connection to Rosa Park's civil rights or humanitarian legacy. The court thus held that: "reasonable people could find that [Rosa Parks's] name was appropriated solely because of the vastly increased marketing power of a product bearing the name of a national heroine of the civil rights movement." Id. at 454. The case subsequently settled.

Dudley may face the same arguments here, depending on how the court interprets the lyrics of her song, which by my reading have nothing to do with the actual persona and identity of Sharon Stone, the actress. One other possibility is that Dudley could argue that her song is a parody, since the connection to Stone is so explicit and overt. But even if Dudley could somehow get the Lanham Act claim (the basis for federal jurisdiction) dismissed, she might still face the right of publicity claims that could be re-filed in state court.

This will be a good one to watch.