On Saturday, the video for Kanye West’s “Famous” whipped up the typical quantity of on-line outrage thanks to its use of nude mock-ups of Taylor Swift, Rihanna, Donald Trump and other renowned figures. After some blowback, the rap star tweeted just and defiantly: “Can somebody sue me already #I’llwait.”
Discounting the deliberate provocation for a second — always a great first step when talking about Kanye — there is a great question presented there. The “Famous” video encircles a luxuriously bedded Ye and Kim Kardashian with several mostly bare celeb replicants. Can one of these stars — most notably Swift, the only one mentioned in the lyrics — for splaying topless lookalike and her contented beside him take West to court?
Short response: Of course she can. The real question is whether it’s worth the attempt.
The case would probably be filed in California, where the video premiered and was created, to start. Bunches of celebs live in California and, not coincidentally, it’s a good state to live in if you’re a celebrity. California not only has laws designed to safeguard a star’s monetary interests, it has a law that creates a specific financial interest for stars. It’s called a Right of Publicity statute, and it prevents someone from using somebody’s name or “likeness” to sell a commercial product without his or her authorization. The law theoretically protects non-celebs also, but they’d almost never have a need to invoke it.
The “Famous” video by choice uses a set of celebrity likenesses — many, we can suppose, without authorization. But the “Famous” video is not an advertisement, even if its Tidal-exclusive status does function the commercial goal of attempting to entice subscribers to the streaming service. It is what courts call an “expressive work” — you know, “art” — and not even California’s strict Right of Publicity legislative act can prevent arty uses of a celebrity picture. Even without West holding forth about how his video is “an opinion on recognition,” a music video is a generally recognized art form, and the law itself lists “audiovisual work” among the creative uses that it allows.
Alternately, one of the featured celebrities could sue for defamation. But that is an even steeper hill. They had need to show the “Famous” video actually claims that Kanye West slept in a bed with all those nude famous people, and even Kanye has not said something that crazy. And public figures, who are expected to endure a little roughing up as the cost of popularity of their reputations, have an even more difficult time establishing defamation than the remainder of us clods.
Now another celeb or Swift could, for the purposes of making a statement, definitely go through the motions of expressing legal indignation via a harshly worded cease and desist letter. But file an actual claim against West on one of these grounds and to go beyond that would likely be fruitless. After all, lawsuits are expensive, and though West notoriously asserted that he was $53 million in debt earlier this year, he and Kim certainly have enough funds to lawyer up, especially to battle a claim that may get dropped the minute a judge glances at it.
Now, if you created something similar to the “Famous” video and you were not Kanye West — i.e., if you lacked Kanye’s wealth and acclaim — one of the celebrities depicted could shut you down without even filing a suit. Actually, celebrities and corporations regularly deploy this technique against smaller artists.
The arguments above apply only to rational litigants. One of the stars represented here, Donald Trump, has already threatened legal action against an artist for painting him with a small penis. Trump v. West could be a precedent-setting battle between unstoppable arrogance and immovable ego. The presumptive Republican nominee is undoubtedly a guy who never inquires whether a mindless actions would be worth the attempt, as we’ve learned in 2016.