Is Robinhood About to Get Wrecked After (Mis)Quoting Ice Cube?
By Eriq Gardner May 7, 2021 www.hollywoodreporter.com
“Check yo self before you wreck yo self”
Facing a lawsuit from the rapper-actor, the stock-trading app says it has every right to comically parody a ubiquitous phrase first used in a song three decades ago.
That now-famous lyric from Ice Cube off his 1992 album, The Predator, is at the center of a lawsuit from the rapper-actor against Robinhood, which offers a very popular stock-trading app. Has the lyric become a catchphrase? Or is the lyric so generic that in the three decades since the release of “Check Yo Self,” the phrase has fallen into the public domain and is now free for all to use? Attorneys for O’Shea “Ice Cube” Jackson and Robinhood are debating this in federal court in San Francisco. It’s not too hard to squint and see this case as having larger relevance in the era of the meme.
The lawsuit was prompted by a March 8 post on the Robinhood app. An image of Jackson from the motion picture, Are We There Yet?, was used along with a caption, “Correct yourself, before you wreck yourself.”
Jackson’s lawyers say Robinhood misappropriated Jackson’s likeness and misquoted his song to falsely imply an endorsement of its product. Nonsense, responds Robinhood in court papers seeking to quickly end the case. Robinhood says its post in question was a news article titled “Why Are Tech Stocks Falling?” that included dry financial news and commentary. The photo and caption merely introduced the news content. (See what the post looked like here.)
An assessment of the nature of this post could become important in the adjudication. Robinhood is raising a First Amendment defense that posits the offending post as expressive speech with nothing expressly misleading. Jackson, on the other hand, says it was really commercial speech outside the bounds of various fair use doctrines intended to shield creators. (A motion to dismiss and strike has more going on — everything from arguments over copyright preemption to Section 230 of the Communications Decency Act. Those lines of defense from Robinhood are somewhat messy and don’t seem likely to end the case.)
Was Robinhood “comically parodying a ubiquitous phrase,” as it claims? Or did the financial services company seize on an Ice Cube lyric that even if it’s not registered, could serve as a trademark for him? As his attorney writes in a brief (read here), “If Plaintiff uses his signature catchphrase, ‘Check Yo Self,’ the public has come to understand that he ‘means business’ and is serious.”
On June 3, a judge will entertain Robinhood’s initial motion. If, and it’s hardly a given, the case survives, the litigation could eventually explore everything from the strength of Ice Cube’s lyric to conjure up some association to the likelihood of consumer confusion.
Led by attorney Mitchell Langberg, Robinhood’s legal team is making some interesting arguments, including that the phrase “check yo self before you wreck yo self” is now “merely a common, slang phrase used by all walks of life in American culture” and that a “light-hearted play on words does not, and legally cannot, result in consumer confusion because the ordinary consumer will recognize that Defendants’ use is making fun of the commonly-used slang phrase.” -30-