Kanye West’s music video for “Famous” has
sparked outrage for portraying naked celebrities in bed, in the form of
life-like wax figures. It is not simply the nudity, but the individuals portrayed,
which has led to criticism; Rihanna is seen lying next to former boyfriend and
abuser, Chris Brown, alleged serial rapist Bill Cosby is featured, as well as Taylor
Swift, Anna Wintour and Amber Rose. Subsequent to the release of the video,
Kanye tweeted, “Can somebody sue me already #I’llwait” but later deleted it.
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Kanye upstaging Taylor Swift at the notorious 2009 VMAs |
While Kanye waits, this Kat contemplates on
whether publicity rights can help those featured (this Kat thinks specifically
of Taylor Swift who, lying next to Kanye in the video, is also mentioned in the
song lyrics, ““I feel like me and Taylor might still have sex. Why? I made that
b**ch famous.”). It is an unusual issue, as publicity rights are usually
invoked by celebrities against companies who use them in unauthorised
advertising and merchandising, rather than their celebrity peers. Also, there
have been few cases which have been brought to protect moral rather than
economic interests. An exception is Waits
v Frito Lay, 978 F. 2d 1093 (9th
Cir. 1992). In this case, Tom Waits sued Frito Lay for imitating
his distinctive voice in an advertisement. Waits had publicly denounced using
artistic talent for commercials. The 9th circuit court in California
found that the right of publicity was not limited to economic harm, and instructed
the jury to consider damages for mental distress.
Since it is possible to claim for damage to
non-economic interests, the main challenge potential claimants will have is
whether the use of their likeness is ‘commercial’ or ‘expressive’. For the
purposes of this post, the California publicity right is analysed because many
of the individuals portrayed are domiciled there, and the video premiered and
was likely created there.
Is
the use ‘commercial’?
To succeed under the statutory publicity
right under s.3344(a) of the California Civil Code, use has to be “for purposes of
advertising or selling, or soliciting purchases of, products, merchandise,
goods or services without such a person’s prior consent…”. Uses which do not
require consent include “news, public affairs, or sports broadcast or account,
or any political campaign” (s.3344(d) California Civil Code). Since the music
video does fit squarely in any of the aforementioned uses, s.3344(3)(e) needs
to be considered as it sheds light on when use will be commercial:
“The use of a name, voice, signature,
photograph, or likeness in a commercial medium shall not constitute a use for
which consent is required under subdivision (a) solely because the material
containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether
or not the use of the person's name, voice, signature, photograph, or likeness was
so directly connected with the commercial sponsorship or with the paid
advertising as to constitute a use for which consent is required under
subdivision (a)”
A potential argument for proving commercial use is that the
release of the video exclusively on the ‘Tidal’ platform, which requires users
to pay for content access, functions as a type of advertisement. However,
unless Kanye has shares in Tidal, this might not fulfil the criteria that the
use be “directly connected with commercial sponsorship” under s.3344(3)(e).
Alternatively, it could be argued that music videos are created to encourage
people to buy the song, and in this way they act as an advertisement. This
argument is more likely to meet the ‘direct connection criteria’, but it is
still not a solid foundation for litigation, particularly considering the First
Amendment Defence.
The
First Amendment Defence
The First Amendment protects expressive uses of
celebrity persona against publicity claims. In California, the ‘transformative use’ test, as developed in Comedy III Productions v Saderup Inc., 25 Cal. 4th 387 (Cal. 2001) is used to determine whether a work should be protected by the First Amendment. The test considers [47] “whether a product containing
a celebrity’s likeness is so
transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness”. The court also noted that [30] “having
recognized the high degree of First Amendment protection for noncommercial
speech about celebrities, we need not conclude that all expression that
trenches on the right of publicity receives such protection…[33] depictions of
celebrities amounting to little more than the appropriation of the celebrity’s economic value are not protected expression under
the First Amendment.”
This test was applied in Keller v
Electronic Arts Inc., F.3d 1268 (9th Cir. 2013) where the court
found that the portrayal of a footballer in a video game did not transform the
plaintiff’s identity. Considering the aforementioned outcome, it is apparent
that Kanye’s video has not transformed the likenesses used. However, claimants
may still find it difficult to prove that the use was commercial. Kanye did not
use the celebrities because of their commercial value, rather, the use was for
the shock factor that could be created because of their personal histories. Each
person portrayed was either significant because of her relationship with Kanye
or because he/she had appeared in the news, such as Caitlyn Jenner, former US
president George Bush, and presumptive Republican presidential nominee, Donald Trump.
Since the music video itself is not for sale, and is arguably an expressive work, this case walks a thin line between a publicity rights violation and First Amendment protection. This Kat suspects it runs too
close to the First Amendment to have a favourable outcome for those featured.
Thanks for this very interesting post Emma! Now that 'Famous' is *finally* available on YouTube, could one argue that monetisation through ads depending on number of views (also driven by controversial content) makes stronger case for commercial use?
ReplyDeleteEleonora,
ReplyDeleteNot sure that a relative level of deeming something "commercial" can (or does) mean that there is a zero sum game with the level of protection under our First Amendment.
Not only that, but here, even purely commercial speech does carry some First Amendment protection.
In other words, the secondary aspect of making money through youtube ad monetisation remains a secondary question - no matter how much money (or how little) is made. Perhaps a point to keep in mind is that the work was not created FOR youtube and the ad revenue (leastwise there has been no suggestion or offer of proof of such).
Curious how this visual commentary is any different than the standard rap practice of dissing other performers in songs. Does it matter if the allusion is made visually rather than verbally?
ReplyDeleteI think that from the perspective of a modern recording agreement (under which most music videos are created, funded and exploited) a music video is very much both a commercial product in itself (to be exploited and monetised in various ways) as well as a promotional tool for the purposes of advertising or soliciting purchases of products, merchandise, goods or services (including of course the recording synch'ed to the video, but also the artist's merch, and third party products including endorsed/placed products). At present (where YouTube is the primary platform for music discovery, for example) the music video is very much, I think, one of the primary tools for developing goodwill in respect of an artist. I would be interested to see if a judge agreed.
ReplyDelete