Cops Sue Afroman Alleging "Lemon Pound Cake" Violates Their Right of Publicity

In Saturday Night Live's cold open last weekend, the newly indicted Donald Trump (played by James Austin Johnson) announced his latest scheme to raise funds for his legal defense: an album of covers of some of the greatest pop songs of all time. Given the real-world success of "Justice for All" – a unique (?) track by the J6 Prison Choir that features Trump reciting the Pledge of Allegiance – the premise isn’t so far-fetched. In the skit, the former president sings "Islands in the Stream" with Don King (played by Kenan Thompson), "Boy's a Liar" with Donald Trump, Jr. (played by Mikey Day), and (finally) "Because I Got High" with Afroman (played by Devin Walker). How did Afroman make the cut? Here is how Trump explains it:

"Uh oh. Who’s this? It’s a man who, like me, was illegally raided, and he’s turning it into big bucks: Afroman!"

For those who weren't paying close attention to entertainment news last week, the joke may not have landed. Let me explain.

Afroman:  Then and Now

Afroman (born Joseph Edgar Foreman) achieved a degree of fame in the aughts when he released "Because I Got High," a wonderfully silly rap song that he reportedly penned in less than five minutes and that has become an anthem (of sorts) for stoners of a certain age. The track helped earn Afroman a Grammy nomination and, to this day, remains on Rolling Stone's list of The 20 Greatest Songs About Weed.

Last August, the Sheriffs in Adams County, Ohio, executed a search warrant and raided Afroman's house on suspicion of drug trafficking and kidnapping. Ultimately, the cops found nothing, and no charges were filed. Afroman contends, however, that the officers caused $20,000 of damage to his house and stole cash from him (a charge the Sheriff’s Office denies). His ex-wife and children live nearby and recorded the raid on a cell phone, and additional footage was captured by Afroman’s home surveillance cameras.

About a month later, Afroman released Lemon Pound Cake, a new album with songs about the raid. The eponymous single “Lemon Pound Cake” describes a moment during the raid (captured on surveillance) when the attention of one of the officers, upon entering Afroman’s kitchen with his gun drawn, appears to linger (lovingly?) on a domed cake plate on the counter, the kind you would expect to find in Martha Stewart's house. These are the song's opening lyrics:

The music video for "Lemon Pound Cake" incorporates that and other footage from the raid. For your viewing pleasure:

Afroman also created merchandise (such as tee shirts) that include images of some of the officers who raided his house. He promoted the album, the video, and the merch on his Instagram account (@ogafroman). 

One other thing:  Afroman has announced he is running for President of the United States in 2024. (Yet another thing he has in common with Trump.)

The Lawsuit

Seven members of the Adams County Sheriff's Office have sued Afroman, alleging that he violated their right of publicity (statutory and common law) for using their names and likenesses “for commercial purposes to promote his ‘Afroman’ brand, to sell products, to promote his music tours, and to make money from the use of Plaintiffs' images on videos and other media.” The cops also claim that Afroman’s social media posts included statements that portrayed them in a false light and violated their privacy rights under Ohio common law. As a result of Afroman’s actions, the officers say they have been subjected “to undue ridicule, embarrassment, mental distress, and danger” and that they have received “threats, including death threats, by anonymous members of the public.” The plaintiffs seek damages (including all of Afroman’s profits) and an injunction.

Afroman has yet to answer the complaint, but he did express surprise to NPR about the lawsuit: 

"Me laughing at them, making songs about them, is more powerful than their authority. It's more powerful than their assault rifles, it's more powerful than what they got because I got these big bad tough guys crying and whining about my songs, on my page, in my world."

Revenge is a dish best served on MTV.

When Afroman responds to the complaint (perhaps with a motion to dismiss or counterclaims for defamation?), we should expect that he will argue (among other things), that he is not making a commercial use of the officers’ identities, and that, in any event, his song, music video and merch constitute speech about a newsworthy topic that is privileged under the First Amendment. Ohio’s right of publicity statute includes a number of potentially relevant coverage exceptions, including for any “audiovisual work or musical work regardless of the media in which the work appears or is transmitted,” for “material that has political or newsworthy value,” and for ads promoting those types of works. The law also exempts using an individual’s persona “in connection with the broadcast or reporting of an event or topic of general or public interest” and any use protected by the First Amendment. (See Ohio Rev. Code § 2741.02, § 2741.09.)

If the court ultimately reaches the constitutional question, which of the many available approaches will it adopt to determine whether the officers’ right to prevent the unauthorized commercial use of their identities must yield to Afroman’s free speech rights? See Robert C. Post and Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L. Journal 86 (2020). Will the court be persuaded that the Sixth Circuit interpreted Ohio law correctly in ETW Corp. v. Jireh, 332 F.3d 915 (6th Cir. 2003) (acknowledging different approaches taken by the Second Circuit, Tenth Circuit and California Supreme Court and holding that First Amendment protected sale of lithographs that included Tiger Woods’ image)? Will the court conclude, as many others have, that SCOTUS’ opinion in Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) – in which the Court upheld a circus performer's right of publicity claim, under Ohio law, against a local station's First Amendment right to broadcast a story that showed the performer's "entire act" – should be limited to its facts? Or will the court take an entirely different approach altogether? 

Cooley v. Foremanhere)

, Case No. CVH 20230069 (Court of Common Pleas, Adams County, Ohio) (complaint available