It depicts eleven nude celebrity lookalikes (Bill Cosby, Caitlyn Jenner, Amber Rose, Ray J, Kim Kardashian West, Taylor Swift, Chris Brown, Rihanna, Donald Trump, Anna Wintour and George Bush) sleeping on a bed, semi covered in tangled white sheets, sleeping on either side of Kanye West’s (also nude) body. The video is based on American artist Vincent Desiderio’s 2008 painting “Sleep”.
The provocative nature of the video instantly turned it into an internet sensation, particularly after West himself tweeted “Can somebody sue me already #I’llwait.” (note: the tweet has since been removed).
Viewed through an American lawyer’s eyes, a number of claims initially come to mind: libel, privacy, copyright and the right of publicity. We can easily discard the first three.
Defamation
The “Famous” video has not actually defamed any of the celebrities featured therein. Their reputation has not been harmed. They have not been lowered in the estimation of the community. Third persons have not been deterred from associating with them (Restatement (Second) of Torts § 559 (1977)). If anything, viewers may have a lower view of West for making such a video. Lena Dunham, for example, criticized the video for reducing women she loves and admires “to a pair of waxy breasts made by some special effects guy in the Valley”.
Privacy
Privacy claims would probably fare no better. First, it is obvious from the video that the bodies are not actual naked photographs of these celebrities. The video features wax bodies. There is, therefore, no disclosure of a “private” fact. A “false light” invasion of privacy claim – the publication of information that is false or places the person in a false light and is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light – may be more successful. This claim, however, is not recognized by all states, e.g. no such claim in New York.
Copyright
The copyright claim would be interesting, were it not for the fact that West obtained Desiderio’s consent prior to the video’s release. Writing for W Magazine, Desidero expressed joy at the collaboration, describing the video as a “feat of magic”.
The right of publicity
The outcome of a right of publicity claim– an individual’s right to control the commercial use of his or her name, image, likeness and identity – is less clear cut. Could West successfully be sued for infringing on these eleven celebrities right of publicity? The answer largely depends on how a given court would characterize the “Famous” video. The right of publicity is a state cause of action and its application differs significantly from state to state. Speech protected by some courts is routinely enjoined by others; approaches adopted by some circuits are invariably dismissed by others; the scope of protected expanded by one judge is limited by another.
The main driving force behind this disparate treatment of right of publicity claims, it is submitted, has been the medium, rather than the content, of the speech. “Traditional” mediums of expression – such as newspapers, magazines, movies and the like – receive First Amendment protection. In contrast, more “commercial” mediums – namely advertising or merchandise routinely give way to publicity rights.
The key question therefore is whether West’s video would be deemed “commercial” or “expressive” speech by the court hearing the (hypothetical) claim. The video already has a number of people questioning whether the video is art.
The only court to have addressed the right of publicity in the context of a music video is the Supreme Court of Kentucky in Montgomery v Montgomery, 60 S.W.3d 524, 529 (Ky. 2001). There, the court reiterated that music, as a form of expression and communication, is protected under the First Amendment. By extension, it had little difficulty concluding that the music video in question was also protected under both U.S. and Kentucky Constitutions. A right of publicity claim could only, therefore, be brought if the use of the person’s name or likeness or other was not sufficiently related to the underlying work or was simply a disguised commercial advertisement for the sale of goods or services.
An argument could easily be made that the use of famous celebrities in West’s video was related to underlying song, itself called “Famous”. The video, in fact, contains a segment where it switches to a black screen, where big capitalized white letters read “SPECIAL THANKS”, followed by the names of all the celebrities appearing, and finally, the words “FOR BEING FAMOUS”, at which point the music and bed scene resume.
In an almost preemptively protective move, West, talking to Vanity Fair, explained “It’s not in support or anti any of [the people in the video] It’s a comment on fame”. The video is also unlikely to be perceived as a disguised commercial advertisement. As the Supreme Court of Kentucky explained, most creative works are produced for sale and profit, “[w]hile music videos are not produced primarily for the sale of the video but, rather, the underlying song, this does not strip them of their First Amendment protection”. Music videos, the court continued, are in essence mini-movies that often require the same level of artistic and creative input from the performers, actors, and directors as is required in the making of motion pictures.
Presumably, Kanye West would not be sued in Kentucky. Whether other states would adopt the same analysis and deem his video to be constitutionally protected speech is unclear. As the cases below show, courts have approached expressive works differently.
Tenth Circuit
- Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996) – Parody trading cards or active major baseball players were held to be protected by the First Amendment. The cards were a source of education and information, and provided an important form of entertainment and social commentary. Cardtoons’ profit motive did not alter the analysis in any way.
Ninth Circuit (the California circuit)
- Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th 2001) – Los Angeles Magazine had not infringed Dustin Hoffman’s right of publicity by superimposing his photograph from the famous “Tootsie” still on another model, also wearing a dress, as part of an photo spread in its “Hollywood past and present” issue. The Ninth Circuit considered the commercial aspects in the article to be “inextricably entwined” with expressive elements, and could not be separated out “from the fully protected whole” à not commercial speech.
- Winter v. DC Comics, 30 Cal. 4th 881 (2003) – DC Comics depiction of the Winter brothers as villainous half worm, half-human characters in a comic book was protected as caricature in an expressive story. Contrast with Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo.2003), where former hockey player Tony Twist successfully sued the publishers of the Spawn comic book before the Missouri Supreme Court for naming their villainous “Mafia don” character “Tony Twist”. The use of the name was deemed to be mainly for the exploitation of the commercial value of Twist’s identity.
- Sarver v. Chartier, 813 F.3d 891 (2016) – Oscar-winning film The Hurt Locker was non-commercial speech, receiving full First Amendment protection, which the Ninth Circuit reminded safeguards “the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays”. Any right of publicity claim against The Hurt Locker had to survive the strict scrutiny test, i.e. the state restriction is narrowly tailored to serve a compelling state interest. Sergeant Jeffrey Sarver, on whom the movie was based, had failed to meet this high burden.
Seventh Circuit (Illinois – Kanye West’s home state)
- Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th 2014) – Chicago based supermarket Jewel-Osco’s advertisement congratulating a “fellow Chicagoan”, Michael Jordan, for his induction into the Basketball Hall of Fame was found to be commercial speech. Even though the text alone was non-commercial, take as a whole, the inferred message in the ad was the enhancement of Jewel-Osco’s brand in the minds of consumers.
Second Circuit (New York, Connecticut, Vermont)
- New York does not recognize a common law right of publicity. The cause of action is codified in § 50 of its Civil Rights Law, which makes it a misdemeanor to use an individual’s name or portrait without consent for advertising purposes or use of trade. New York courts have developed exceptions from liability for “newsworthy uses” in “the public interest” to reconcile the restriction on speech with the First Amendment. New York’s statute would most probably not cover this music video, particularly in light of Judge Tom’s recent reminder that New York’s privacy statute was designed to operate in connection with the “sale of goods and services”, and that its application to works involving literary and artistic expression protected by the First Amendment was “remote from the Legislature’s contemplation”, Nussenzweig v. diCorcia, 38 A.D.3d 339 (2007).
Where does this leave us? The success of a right of publicity claim is unclear, but seemingly, unlikely if the work is deemed to be expressive. According to Desiderio, the original artist, the video constitutes expression in its purest form: “Kanye West’s video demonstrates how art speaks the language of art, how visual codes people the artistic imagination, enlivening the matrix of possibilities that are always and everywhere about us, but rarely perceptible to those who focus only on the surface”.
Let’s see if Taylor Swift and her bed companions agree.
Alexia Bedat is media law lawyer, working in New York.