After debuting his new video “Famous” this weekend Kanye West tweeted, “Can somebody sue already? I’ll wait.” And he’s still waiting — but for how much longer?
The music video is essentially recreation of painter Vincent Desiderio’s “Sleep,” featuring nude celebrities, most of whom aren’t really there: Taylor Swift, Anna Wintour, Rihanna, Caitlyn Jenner, President George W. Bush, Chris Brown, Donald Trump, Bill Cosby, along West’s wife Kim Kardashian, the rapper himself and two of the couple’s ex-lovers (Ray J and Amber Rose) all sleeping next to each other in a large bed.
While the film is a mixture of real people and digital recreations, at least some of these subjects’ nude likenesses were recreated without their consent. Which raises the question: If West got his wish and one of his famous subjects sued him, would the case hold water?
In short: Filmmakers who have watched “Famous” and considered pasting famous faces into films of their own might want to think twice. While a legal case against West might be tricky, it’s far from unthinkable.
“It’s one of those nerdy lawyer questions that raises so many issues and is fun to dissect,” said entertainment attorney Nicole Page, a partner at Reavis, Parent, Lehrer in New York. Page, the Chair of the Board of the non-profit Women Make Movies, is a fixture in the entertainment world with extensive background advising film and TV productions, specializing in intellectual property rights. She has providing counsel to well known clients across the world of entertainment, sports and modeling. In a recent interview with IndieWire, she talked through some of the potential legal issues associated with West’s project.
Does Freedom of Speech Fly?
As a starting point — and why Page thinks the depicted celebrities would have an uphill battle — is West’s right to free speech and artistic expression.
“No matter what you think of the video, it’s clearly an attempt to make a comment on the nature of celebrity,” Page said. “Anybody with half a brain in their head is going to know that George Bush, Taylor Swift and Trump didn’t get in bed together. It’s clearly some kind of fictional creation of an artist.”
The assumption that “Famous” constitutes artistic expression means all other claims would have to be weighed against West’s first amendment rights. “If there is a lawsuit, a judge will do some real careful looking at how, in context, these celebrities are being portrayed and look at all the factors to see if they tip the scales in the other direction.”
A State-Based Offense
According to Page, the two biggest things that Swift or other possible plaintiffs would have going for them in a lawsuit is that the video was broadcast in California — and they have financial resources to force a protracted legal battle.
Although the laws vary from state to state, celebrities are entitled to a Right of Publicity, which endows an individual with control over the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity.
California’s Right of Publicity laws, along with New York’s, are the strongest in the country — not surprising considering it is the home to so many bold-faced names — and plaintiffs traditionally have a great deal of leeway in exploring how a celebrity’s rights have been violated.
Pointing to billionaire Peter Thiel’s funding of Hulk Hogan’s successful suit against Gawker, Page also noted that each of these celebrities likely has the money to force a protracted and expensive lawsuit that could exploit the strong Right of Publicity laws and grind West down in a war of attrition.
“Taylor Swift could make the argument that Kanye is making money from her image,” said Page. “She could say, ‘If I wasn’t naked in that video, no one would watch it. He didn’t have permission to do that, so that’s a misappropriation of my image and he’s violating my right of publicity.”
Page points to Vanna White’s successful lawsuit against Samsung for running an ad portraying a robot dressed like her, mimicking the way the game show star turned letters around on the popular “Wheel of Fortune.”
The key difference is that White’s image was used in a commercial being used to sell a product. While West’s music video does have commercial value and is a tool used to drive album and concert ticket sales, West’s insistence on his work’s purpose as social commentary prevents this from being seen as purely an attempt to profit off Swift’s likeness.
“You do have a right as a celebrity to control how you were portrayed, but as a public figure you are open to criticism, unflattering photographs, and your expectation of privacy is considered less because you are deemed to have thrust yourself into the limelight,” said Page.
There’s also the question of whether West’s exploitation of these images harms his subjects. “What’s the damage? Is there emotional distress?” Page asked. “If you are weighing it all out, I think a court would be sympathetic to the fact he isn’t showing these people sitting around at a party. I do think there’s something to the fact that they are in a bed, it appears they’ve all just had sex, they’re naked. I think that might be seen as pushing it and would at least partially tip the scale against Kanye’s freedom of speech.”
Legally, you can’t hack someone’s phone to steal private images, or used long lens or spy cameras to get images of someone in the privacy of their home, which is why the ability to digitally recreate someone’s naked body—in very credible terms—could give a judge something mull over.
Then there’s small but not entirely unreasonable possibility of defamation claim — essentially, when you say something false about someone with malicious intent.
“I guess you could say that Kanye is making this assertion that Taylor Swift was in bed with him and other people, that’s clearly false,” speculated Page. “And since he has beef with her, maybe he did it with malicious intent.”
The lawyer thinks a defamation angle is a stretch, because the burden of proof is so high and doesn’t have the wiggle room of Right of Publicity. Nonetheless, she does say that whenever West tweets something provocative, he opens himself up to a plaintiff building a motive against him.
“If he was my client, I’d tell him to shut up, but then again he seems to want to be sued,” said Page. “Maybe that’s part of his larger plan. Who knows what’s going on in his head? That I can’t help you with.”