The longstanding feud between Kanye West and Taylor Swift just escalated with the recent release of the music video “Famous” and Kanye’s lawsuit challenge shortly after. Kanye debuted the controversial video on June 24th that featured him and his wife Kim Kardashian West in bed, surrounded by nude replicas of a number of celebrities, from family member Caitlyn Jenner to politicians such as Donald Trump. Directly next to Kanye was a fully undressed wax figure of Taylor Swift. Along with the explicit image, the rapper also raps about his complicated history with Swift – “I feel like me and Taylor might still have sex” – adding that he made her famous.
Since its release, the video has received mixed responses from those who are featured in the video. Shortly after the debut, Kanye challenged those including Taylor Swift to sue him. The challenge was made in a now-deleted tweet: “Can somebody sue me already #I’ll wait.”
Swift may have multiple grounds to sue Kanye, however, her most viable claim would be for the violation of her right of publicity.
The right of publicity gives an individual the exclusive right to control the commercial use of her name or likeness. Civil Code Section 3344 creates a statutory right of publicity authorizing recovery of damages from anyone who knowingly uses another’s name, voice, signature, photograph or likeness, in any manner, for specified commercial purposes, without the other person’s prior consent. The statute also provides punitive damages and attorney fees to the prevailing party.
The key issue in this case would be whether Kanye could successfully assert a First Amendment defense. The First Amendment freedom of speech is often in tension with intellectual property rights, and here, a personal and privacy right. To prevail on a First Amendment defense, Kanye must prove: (1) Swift’s image is only one of the “raw materials” from which an original work is synthesized; and (2) the value of the work comes from his skill and reputation, rather than from the Swift’s fame. This second prong has been a topic of debate ever since the Kanye – Swift feud began at the 2009 VMA Awards.
Of course Swift and other celebrities featured in the video have a host of other factors to consider before bringing a lawsuit including possible negative publicity and politics, and so far there has been no word of any legal action yet.