Since its weekend release, Kanye West's very naked "Famous" music video has received mixed responses from those who are "in" the video and those who watched it as a fan/critic/human being. Shortly after the video's debut, Kanye challenged those featured in the video, which includes everyone from Donald Trump to Taylor Swift, to sue him. The challenge was made in a now-deleted tweet but as with everything on the internet, it lives forever:
Cosmopolitan.com reached out to William Hochberg, an attorney who specialises in music and media law at Greenberg Glusker Fields Claman & Machtinger LLP in Los Angeles, to see if it's worth it for the stars to take up Kanye's challenge.
How would a lawsuit like this work?
A plaintiff celebrity could sue Kanye for violation of their right of publicity under state law and/or trademark infringement under federal law. They are not mutually exclusive. Under California common law, the plaintiff must show (1) Kanye's use of the celebrity's identity; (2) the appropriation of the celebrity's name or likeness to Kanye's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury to the celebrity.
Do the celebrities "featured" in the video have a case?
I believe there is a strong case for the celebrities, as long as they didn't consent. Now, there is a "fair use" defence, but for Kanye to prevail, he needs to show that his depictions of the celebrities are "transformed" in his video. It is not enough for him to say that the video itself is a transformation of the celebrity model into artwork that is protected free speech. No, Kanye would have to show, I believe, that the celebrity model is itself transformed somehow. That it is somehow different from a literal reproduction of the celebrity. There, he may have a problem, in my view.
What are the odds of the celebrities winning?
Hard to handicap litigation, because we know judges and juries can be unpredictable. There are a couple of precedents: In 1992 we had a case where Vanna White, the famous Wheel of Fortune game show hostess, sued Samsung Electronics over a print ad for VCRs that had a female robot that looked like her and was turning a letter on Wheel of Fortune. The trial court held that the robot was identified as the persona of Vanna White. But the court of appeals reversed and held that the robot was not a "likeness" of Vanna in the strict sense required under the California statute. But we also have a looser standard under our "common law." So the appeals court stressed that failure to qualify for statutory right of publicity protection in California does not mean you can't win under the broader common law. Whoever represents the celebrity [in Kanye's case] will need to be careful about what law they are using.
If Kanye gets hit with a lawsuit, does he hurt himself because of the tweet he posted about wanting to be sued?
In terms of a jury, it seems that outcomes are often determined as much by how the defendant or plaintiff comes off to the jury than the law. This is unfortunate, but it's a fact in my experience. If he comes off as a wise guy with little to no regard for the feelings and rights of others, he may be punished by a jury. Judges tend to be more agnostic about personality issues than juries, but if he tries some asinine antics or publicity stunts in the state or federal courtroom, that could backfire badly financially, in terms of sanctions, punitive damages and so on. Extreme acting out in the courtroom could even land him with penal code violations and jail time.
Has anyone ever sued an artist over a music video and won?
A case that comes to mind is when Gwen Stefani and No Doubt sued Activision over a game that used an avatar that looked like Gwen. No Doubt had licensed Activision to use the avatar, but [Gwen] said they went too far and exceeded the scope of the license. The California appellate court held Activision's use of Gwen's likenesses was not protected by the First Amendment. This was a big win for No Doubt and Gwen Stefani, and may be used by other celebrities here.
If you were Kanye's lawyer, what would you tell him now?
I would tell him to stop sending tweets that will provoke legal attacks that may be very expensive for him. If it doesn't cost him anything in legal fees or penalties, go for it, Kanye. It would be more expensive than a PR campaign, let's put it that way.
Would deleted tweets, like Kanye's, have the same power in court?
You can't just rewrite internet history. It would mitigate his damages potentially because it limits the amount of time it was up there. It would've been him following good advice to delete it because it will limit his exposure to liability. However, it doesn't eliminate his exposure because it happened. It may have been damaged done. It's all over the internet, all over in print. The damage has been done whether or not he deleted it. It doesn't eliminate history.
If Kanye believes his life is art and he wants to put a lawsuit on his canvas, it may be a work of rare artistic genius, but perhaps more from the "realism" school than he anticipates … and very expensive to "paint" especially if he loses.
This interview, which was conducted via email and phone, has been edited and condensed.