Pop music superstar Kanye West’s “Famous” music video may become even more so, if celebrities including Taylor Swift, Anna Wintour, Donald Trump or Rihanna take legal action.  Kanye West’s response following backlash over the video suggested he might face just that, tweeting "Can somebody sue me already #I'llwait" (though deleting it shortly afterwards).

The video not only portrays various celebrities lying in bed naked - which would be provocative enough – but also shows Rihanna lying next to her former boyfriend and abuser Chris Brown, depicts alleged rapist Bill Cosby, and references Taylor Swift specifically in the song’s lyrics “I feel like me and Taylor might still have sex. Why? I made that b**ch famous.”

The video raises interesting legal issues as to moral and publicity rights, as well as possible copyright and defamation claims.  Courts have previously considered celebrity impersonation in a commercial context.  In Waits v Frito Lay 978 F. 2d 1093 (9th Cir. 1992) the distinctive-voiced singer Tom Waits sued Frito Lay and its advertising agency Tracy-Locke following the broadcast of a radio commercial for Doritos which featured an imitation of Waits’ signature raspy vocals.  Waits was awarded around US$2.5 million in damages for voice misappropriation and false endorsement (equivalent to around $4.3 million in 2016). The judgment was upheld on appeal by the 9th circuit, confirming compensation of $100,000 for the fair market value of Waits’ services, $200,000 for injury to his peace, happiness and feelings, $75,000 for injury to his goodwill, professional standing and future publicity value, and $2 million in punitive damages.

An interesting factor of the Waits case is that the singer was expressly against commercials, rejecting numerous lucrative offers to endorse products, instead publicly expressing his philosophy that musical artists should not do so because it detracts from their artistic integrity.

The case followed [Bette] Midler v Ford Motor Co 849 F.2d 460 (9th. 1988) which held that “when a distinctive voice of a professional singer is widely known and deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.”  The Midler tort is a species of violation of the “right of publicity” – the right of a person whose identity has commercial value to control the commercial use of that identity.

Right of Publicity

The right of publicity is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. California, where most of these celebrities call home, codified these protections in the Celebrity Rights Act in 1985 (Cal. Civ. Code §3344). Somewhat ironically, Kanye West is married to the equally famous Kim Kardashian, who in 2011 sued Old Navy for violating her publicity rights by using a lookalike in an ad.  Kardashian claimed the use of a lookalike model might cause consumers to believe she had endorsed the company.  Kardashian sought unspecified damages believed to be in the region of $15-$20 million, and confidentially settled with the company in 2012.

Kardashian features personally in West’s Famous, unlike most of the other celebrities depicted, who are wax likenesses.  These include Kardashian’s step-father Caitlyn Jenner and Kardashian’s ex boyfriend Ray J.  If they or other celebrities sued West for their depiction in the video, they could seek to do so under the California statute, which prevents someone from using a person’s name or “likeness” to sell a commercial product without his or her consent.  However, though made for commercial purpose, Famous is not an ad for a commercial product, other than perhaps for the song itself.  West would likely defend the suit as it being an “expressive work”– a permitted creative use under the United States First Amendment.

A New Zealand perspective

While New Zealand celebrities’ endorsements or sponsorships also carry substantial value, New Zealand does not have specific statutory protection for the right of publicity.  Instead, protection of the right of publicity may be afforded in the common law tort of passing off, the emerging tort of invasion of privacy, or in an action for breach of the Fair Trading Act 1986. A separate tort of misappropriation of personality has been recognised overseas, which development may prove influential within New Zealand.

Defamation

Alternatively, the celebrities in either New Zealand or the United States could sue for defamation.  Taylor Swift might be the most likely to do so, having been physically depicted as well as included in lyrics.  However, defamation is a higher hurdle, and she would have to show that the video actually asserts that West slept in a bed with her. Donald Trump, also depicted in Famous, earlier this year threatened legal action against an artist who depicted Trump’s manhood in an unfavourable size.

The California Civil Code defines slander as a “false and unprivileged publication…by radio or any mechanical or other means which” among other things “imputes someone to a want of chastity…or [w]hich, by natural consequence, causes actual damage” (Cal. Civ. Code, § 46.).

West’s defence to a defamation case would likely be that it’s clearly a fictional comment on the nature of celebrity, rather than a video actually depicting these celebrities in bed together.

Copyright Infringement

The use of a celebrity’s likeness would not infringe copyright itself, but if the wax sculptures used in the video were created using an existing photograph they could arguably be infringement as a derivative work.

While Swift’s representatives initially said she was horrified by the video, West’s wife (Kardashian) now says Swift was in on it the whole time.  As yet, the outrage has only had the effect of generating even more headlines for the famous feuders, though perhaps that’s the point.