On Saturday, the video for Kanye West’s “Famous” whipped up the typical amount of online outrage thanks to its use of nude mock-ups of Taylor Swift, Rihanna, Donald Trump and other famous figures. After some blowback, the rap superstar tweeted simply and defiantly: “Can somebody sue me already #I’ll wait.”
Ignoring the deliberate provocation for a second — always a good first step when talking about Kanye — there’s a great question posed there. The “Famous” video surrounds a luxuriously bedded Ye and Kim Kardashian with several mostly nude celebrity replicants. Can one of these celebrities — most notably Swift, the only one mentioned in the lyrics — take West to court for splaying her contented and topless lookalike beside him?
Short answer: Of course she can. The real question is whether it’s worth the effort. Asking “Can I sue?” when you really mean “Can I win a lawsuit?” is kind of like asking “Can I jump off a building?” when what you really want to know is “Can I fly?” If a claim has a non-frivolous basis in law, you can certainly bring a lawsuit, and anyone from Anna Wintour to Ray J could put a team of lawyers to work on the papers today.
To start, the case would probably be filed in California, where the video premiered and was likely created. Lots of celebrities live in California and, not coincidentally, it’s a very good state to live in if you’re a celebrity. California not only has laws designed to guard a celebrity’s financial interests, it has a law that creates a special financial interest for celebrities. It’s called a Right of Publicity statute, and it prevents someone from using a person’s name or “likeness” to sell a commercial product without his or her consent. The law theoretically protects non-celebrities too, but they’d almost never have a need to invoke it.
The “Famous” video deliberately uses a set of celebrity likenesses — many, we can assume, without consent. But the “Famous” video isn’t an ad, even if its Tidal-exclusive status does serve the commercial purpose of attempting to lure subscribers to the streaming service. It’s what courts call an “expressive work” — you know, “art” — and not even California’s strict Right of Publicity statute can prevent artistic uses of a celebrity image. Even without West holding forth about how his video is “a comment on fame,” a music video is a commonly accepted art form, and the law itself lists “audiovisual work” among the creative uses that it permits.
Alternately, one of the featured celebrities could sue for defamation. But that’s an even steeper hill. They’d have to show that the “Famous” video actually asserts that Kanye West slept in a bed with all those naked famous people, and even Kanye hasn’t said something that wild. And public figures, who are expected to endure a little roughing up of their reputations as the cost of fame, have an even harder time proving defamation than the rest of us clods.
Now Swift or another celeb could, for the purposes of making a statement, certainly go through the motions of expressing legal indignation via a harshly worded cease and desist letter. But to go beyond that and file an actual claim against West on one of these grounds would probably be fruitless. After all, lawsuits are expensive, and though West notoriously claimed 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 might get tossed 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 fame — one of the celebrities depicted could shut you down without even filing a suit. That same cease and desist letter might be enough to convince you to back away; after all, lawsuits are expensive. In fact, celebrities and corporations regularly deploy this technique against smaller artists.
One last note: The arguments above apply only to rational litigants. One of the celebrities represented here, Donald Trump, has already threatened legal action against an artist for painting him with a tiny penis. Trump v. West could be a precedent-setting battle between unstoppable arrogance and immovable ego. As we’ve learned in 2016, the presumptive Republican nominee is clearly a man who never asks whether a stupid action is worth the effort.