Could Kanye West Actually Be Sued for His 'Famous' Video?

There’s been a range of responses to Kanye West‘s now universally recognized “Famous” video, but everyone is still holding out for an 100% official response from Taylor Swift or her camp. So far, all we have is a report from Hollywood Life, who have quoted “a source close to the Swift camp:”

“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!”

There haven’t been any concrete reports of a lawsuit in the works as of yet, but the controversial nature of the video does conjure a very vaild question: can any of the celebrities depicted in bed with Kim and Kanye actually take the matter to court? A breakdown by Forbes legal entertainment contributor Nicholas Rozansky points out three legal options and/or angles they could take – copyright infringement, defamation and right to publicity. According to Rozansky, the right to publicity would be their most promising choice.

In regards to a Copyright Infringement Suit, Rozansky explains:

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.

For 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.

In terms of a Right To Publicity case:

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.”