Can Taylor Swift Actually Sue Kanye West for Using Her Naked Body in "Famous"?

It’s been recently reported that Taylor Swift wasn’t too thrilled about Kanye West’s new “Famous” video, where she is depicted as a topless wax figure lying next to the 38-year-old rapper on a gigantic bed alongside other popular celebrities. According to Hollywood Life, a source close to the Swift camp said “Taylor is livid. Taylor is horrified [by the ‘Famous’ music video]. Taylor didn’t know what to do when she heard about what Kanye did. She is bewildered, feels betrayed and is beyond frustrated with Kanye. It is like a complete nightmare. Taylor is pissed to say the least!”

While no mention of a lawsuit is in the works against Kanye, could the celebrities who were depicted in the video actually have a basis for a case? In this breakdown by Forbes legal entertainment contributor, Nicholas Rozansky, he points out three options those involved could have for an actionable cause — these include copyright infringement, defamation and right to publicity. He points out that the “right of publicity” is their best bet for action.

In terms of a copyright infringement suit he states:

The use of a celebrity’s image in itself would not make Mr. West liable for copyright infringement. Rather, the lawsuit would be over Kanye’s depiction of these figures as a “derivative work.” In other words, if Kanye, or the wax sculptor under his direction, used an existing photograph, video, or other image to create the derivative work – the sleeping wax figures, the owner of that copyright may have a colorable lawsuit against Mr. West. Given that these wax figurines seem to be custom made, and the damages for copyright infringement are limited here, this cause of action seems unlikely.

In terms of a defamation suit:

Because of the sexual nature of the depiction, the celebrities may sue Mr. West for defamation under a slander per se theory. This is because slander is defined in the California Civil Code 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.).

The celebrities here will have to simply show that the image Mr. West created is associated with them, and is depicting them in an unchaste act. Given the image itself, it may seem obvious that such a cause of action would be appropriate. And, slander per se is actionable without proof of special damage (Gonzalez v. Fire Insurance Exchange (App. 6 Dist. 2015) 184 Cal.Rptr.3d 394, 234 Cal.App.4th 1220). This means that the celebrities who sue do not have to show that their reputations were actually harmed just to get past the initial phases of a lawsuit against Mr. West.

However, Mr. Nicholas Rozansky says that “first amendment” defense may work here as Kanye could just be stating personal opinions about the celebrities in his own way.

In terms of the right to publicity:

The right of publicity, often called personality rights, 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, recognizing the large amount of celebrities who call this state home, codified protections for its most well-known citizens in the Celebrity Rights Act in 1985 (Cal. Civ. Code §3344).

Under Cal. Civil Code §3344 “any person who knowingly uses another’s…likeness, in any manner…for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent…shall be liable for any damages sustained by the person or persons injured as a result thereof.”

It will be interesting to see what plays out in the coming months. Will some choose to sue or just keep quiet? Either way, Kanye is contributing to their fame, helping all of them stay current in the pop culture conversation. Also, while some of the celebrities shown in the video have kept silent, some have actually made some public reactions. Chris Brown was actually more humorous about the video, stating on Instagram, “Why I gotta have the plumbers butt/crack showing WAX figure?”