Kanye West's 'Famous' Video Is Infamous, But Will Any Celebrity Dare Sue?

Courtesy of Tidal
Kanye West's video for "Famous."

If an artist wished to intentionally create a music video that would lead 50 judges to opine the work was legally permissible and another 50 judges to conclude the opposite, one could hardly do better than Kanye West’s video for “Famous,” which features realistic -- and nude -- depictions of celebrities including Donald Trump, Caitlyn Jenner, Rihanna, Bill Cosby, Taylor Swift, Ray J and Chris Brown in bed with West and his wife Kim Kardashian.
 
Undoubtedly, “Famous” is provocative. In fact, that could be its raison d'être -- as evidenced by West’s since-deleted tweet: “Can somebody sue me already #I’llwait.”

A lawsuit against West (plus others who produced “Famous”), presumably demanding money and an injunction against further distribution of the video, would likely include a claim of violating the Lanham Act, a federal statute that prohibits false advertising and infringement of one’s trademarks. Essentially, the suing star would be arguing that their appearance in the video could be interpreted as an endorsement, to the extent that any reasonable viewer would be confused about the origins of the work.

The law also has room for parody. West could argue that there’s no likelihood of confusion because viewers of the “Famous” video would hardly take serious a video of Bill Cosby, Donald Trump and the suing celebrity in bed together.

West would probably have to contend with other claims in the lawsuit as well; he could face everything from an invasion-of-privacy cause of action to libel. If a lawsuit comes, he’d almost surely face the allegation of violating the star’s right of publicity. Whereas the Lanham Act is a federal claim, these claims arise under state law. These days, most states have statutes guarding against intrusion of one’s privacy and prohibiting unauthorized commercial use of one’s image or likeness, although they vary across the country. Some states like New York only protect misuse of one’s identity in advertising (a music video probably doesn’t count) while other states are more generous to celebrities. Like California, where West’s wife Kim Kardashian once sued The Gap for $20 million for hiring a similar-looking brunette reality star to pitch Old Navy. Or West’s home state of Illinois, as best demonstrated by the $8.9 million victory that Michael Jordan earned last year at trial after a supermarket chain congratulated him in the pages of Sports Illustrated upon his induction to the Hall of Fame.

Then again, most state publicity-right statutes have an exception for using a person’s identity in a work of art. That leads to the fundamental question a lawsuit over “Famous” would explore: Is the video exploitation, or is it constitutionally protected speech?

This has been an extremely hot area of late, almost to the extent that one wonders if the creators of “Famous” had familiarized themselves with past legal controversies and specifically created the video to provoke a courtroom showdown on this topic. Interpretation of what’s permissible has been shaped by disputes involving Wheel of Fortune hostess Vanna White depicted as a robot in a blond wig in a TV commercial; the images of the Three Stooges in artistic lithograph T-shirts; and Gwen Stefani’s avatar singing about sleeping with prostitutes in the videogame Band Hero.

The conclusion of some appellate circuits in the country -- although not all, yet -- is to direct judges to test whether a defendant is synthesizing the celebrity likeness into a work that adds some sort of transformative artistic meaning, or "whether the depiction or imitation of a celebrity is the very sum and substance of the work in question."

It’s not settled, though, that a judge would be looking at “Famous” through this exact prism. That might very well depend on what the Supreme Court does in the coming months. At present, the NCAA is involved in a legal battle with amateur athletes who are insisting upon compensation for use of their likenesses in video games and on television. The collegiate league is inviting the high court to tackle the issue of whether the First Amendment provides cover for a realistic portrayal of a person in an expressive work. The NCAA suggests that courts shouldn’t be analyzing whether there’s transformative meaning in celebrity depictions, but rather whether use of someone's likeness is purposely misleading. In other words, it wants these claims to be treated like ones made under the Lanham Act.

Some, like the Screen Actors Guild, have warned of the consequences of this approach. In another case involving athlete likenesses in video games, the actors union submitted an amicus brief that warns of those who might disguise their works under the veil of artistic expression. A SAG attorney wrote that “individuals with editing software could easily transpose images of celebrities with those of unclothed models and make them available on the Internet.”

The fact that all these celebrities were depicted nude could well be the X-factor in a lawsuit over “Famous,” and might even tip the scales. Instead of 50 judges saying “yes, it’s legally permissible” and 50 judges saying “no,” we might be looking at a few more in the nay column precisely because of some prudish tendencies.

Still, there are reasons why celebrities might be scared away from suing. Because prior restraints of speech are frowned upon, judges would probably not issue a preliminary injunction, meaning that regardless of litigation, the video they would be aiming to suppress could be online for years as the dispute plays out in court. In the meantime, there would be the risk of publicity, both on the front-end as the filing of the lawsuit could incite curiosity-seekers to view it -- assuming they are among the few interested people who hadn’t seen it already -- as well as the back-end, as any lawsuit would trigger what probably would be a brutal discovery process. Those suing may have to hand over endorsement deals and submit to depositions to show the true value of their fame. Someone like Ray J -- who has run into his own legal trouble before -- might see their imprimatur attacked in court as essentially worthless. After Kardashian, for instance, sued The Gap, the retailer demanded financial records about her clothing deals and information about her “reputation as a singer and dancer.”

Plus, who knows what skeletons could come out of the closet? For example, even though Hulk Hogan got a $140 million judgment against Gawker after the news site published an excerpt of his sex tape, he also had to endure the embarrassment and ruined contracts that occurred after racist comments on that sex tape were made public. 

Anyone suing West over “Famous” should prepare for an intensely high-profile battle over the boundary between art and commerce that will draw some discussion of what it’s like to be a universally recognizable face who is ashamed to be publicly, if fictionally, naked. A lawsuit aiming to send a message to stop exploitation would invite scrutiny from all ends and provide no shortage of news stories and analysis -- which may be what West wants in the first place -- and could test the limits of what any legal adversary would be willing to provide and endure.

Let’s call it the price of being famous.