On Friday, Kanye West premiered the visual for “Famous,” a song already mired in controversy over its reference to Taylor Swift: “I feel like me and Taylor might still have sex/Why? I made that bitch famous.” In recent weeks, the Kardashian-West clan has publicly sparred with Swift’s camp over whether or not she approved the lyric prior to the release of The Life of Pablo; he says she did, she says she did not. The video that Kanye debuted for the song on Friday night at the L.A. Forum consists mostly of a slow panning shot over a bed where ten sleeping figures—all nude—flank a nude Kim K and Kanye. It’s unclear whether the figures are wax replicas or real-life look-alikes; some of the figures move minimally but remain mostly still while the song plays.
About halfway through, the screen turns black and text reading “Special thanks to” appears. The mid-video credits list Bill Cosby, Caitlyn Jenner, Amber Rose, Ray J, Kim Kardashian West, Taylor Swift, Chris Brown, Rihanna, Donald Trump, Anna Wintour, and George Bush. After the names, the text “FOR BEING FAMOUS” flashes, perhaps to express a pivot from traditional acknowledgements which would generally indicate involvement or approval. Fans took to Twitter after the premiere to comment on the video and, in particular, speculate about what Taylor Swift’s reaction might be.
Yesterday, Kanye stoked the Twitter fire by tweeting, “Can somebody sue me already? #I’llwait.” The tweet has since been deleted, probably because it could arguably be viewed as an acknowledgement of guilt or as evidence of his intention in releasing the video. Given Kanye’s contentious relationship with Taylor Swift, as well as with some of the other celebrities who are depicted, the video seems almost deliberately planted to instigate some kind of dispute. Of course, the question remains: could any of them sue him, and would they be successful?
The right of publicity varies from state to state, but in California, where the video was premiered, the law is generous. It protects against unauthorized uses of a celebrity’s “identity” to the user’s advantage, either commercially or otherwise which results in some kind of harm to the celebrity. “Identity” includes a use of the person’s name, likeness, or other distinguishing characteristics. There is no doubt that Kanye’s use of the naked figures and their names could be the basis of a claim, and Kanye himself has not shied away from who the figures are intended to represent. As he raps, “I feel like me and Taylor might still have sex,” the video pans over Taylor’s naked sleeping body and onto Kanye’s.
Of course, there is a First Amendment—or freedom of speech—defense to be made on Kanye’s behalf. The less “commercial” the use is, the more likely it is that this type of defense can be implicated. Case law has clearly outlined that a cause of action for appropriation of another's name and likeness may not be maintained against “expressive works,” even when the use is for entertainment purposes. In this case, clearly the video has commercial implications—fans bought tickets to the event, purchased limited-edition merch, and flocked to Tidal to stream the video—but Kanye has also explained that the video is intended to be “a comment on fame,” and in a Vanity Fair interview about the video, he makes it clear that the video is intended to elevate the typical music video to a true piece of art.
Kanye's tweets and prior behavior, at least with respect of Swift, don’t bode well for him.
To the extent that a false association is presumed between one of the celebrities in bed and the video or Kanye, and that that connection in some way adversely affects their reputation, the celebrities could also have a claim for defamation against Kanye. His credits might suggest that they somehow approved the use of their name and likenesses, which although is not wholly clear at this stage, seems unlikely. Additionally, to the extent the naked figures suggest something untruthful about the celebrities or their actual naked bodies, this too could be grounds for defamation. The suggestion of a post-orgy naked slumber is not exactly in line with Taylor’s carefully curated, squeaky clean reputation, and although Trump has consistently balked at what a presidential candidate should or shouldn’t do, providing his electorate with an image of his naked butt is probably not a part of his campaign plan. This wouldn’t be the first time Trump went after a naked depiction of himself touted as art. Kanye’s intention could also come into play here, and his tweets and prior behavior, at least with respect of Swift, don’t bode well for him.
Needless to say, the depictions in the video are not exactly flattering, and given certain historical context, it’s probably likely that a cease and desist or two lands in Kanye’s inbox come Monday.