Over the past week, the Brand Protection Blog has reviewed the different legal claims unwitting stars of Kanye West’s “Famous” video might assert the rap artist. In Part I, we analyzed claims for Trademark Infringement. In Part II, we took a look at claims for False Endorsement. Today, we consider whether the “Famous” video violates celebrities’ rights of publicity. Of the three causes of action we have examined, an action based on a celebrity’s right of publicity may be the most viable — but it is still far from certain.
Right of Publicity
The right of publicity is an individual’s right to prevent the unauthorized use of the person’s name, likeness, or other recognizable aspects of a person’s persona (such as their voice, signature, etc.) for commercial purposes.
The right of publicity is governed by state law and therefore varies from state to state. California, where many celebrities reside, provides right of publicity protection by both common law and state statute. For example, The Celebrity Rights Act (Cal. Civ. Code § 3344) prohibits the knowing use of another’s “name, voice, signature, photograph, or 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…” and provides that that person “shall be liable for any damages sustained by the person or persons injured as a result thereof.”
The fact that the “people” featured in the video are wax “look a likes” — on which Kanye reportedly spent a whopping $750,000! — would not relieve him of liability. Courts have found that “look a likes” of celebrities, used in commercial contexts, without their consent, constituted a violation of the celebrities’ right of publicity. For example, the rap group Fat Boys sued Miller Brewing over Miller’s advertising agency produced a TV ad that included three Fat Boys “look a likes” that were performing in the distinctive Fat Boy style. Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., 737 F. Supp. 826 (S.D.N.Y. 1990). The court found that the physical similarity between the lookalikes and the Fat Boys rap group, constituted a cause of action under New York law.
Kanye’s “Famous” music video intentionally uses a number of celebrity likenesses, including those of Taylor Swift, Rihanna, Caitlyn Jenner, Donald Trump, and more, presumably without their consent. The main questions that remain are whether Kanye’s use of the celebrity likenesses in this manner is a “commercial use” and, if so, whether the use is protected by the First Amendment.
Is the “Famous” Video a “Commercial Use” of the celebrities likenesses?
In order to bring a successful claim for a right of publicity violation, the use of the celebrities’ likeness must be for a commercial purpose. According to California Stat. 3344(3)(e), a use does not have to be commercially sponsored or consist of paid advertising to constitute a “commercial use.” Instead, the statute states that “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).”
Here, a celebrity could argue that Kanye used his/her likeness to Kanye’s commercial advantage. For example, the video was only available for streaming on Tidal, a subscription-based music service (however, we note that the video is now available to view on YouTube). Furthermore, a featured celebrity could argue that the purpose of the video is to advertise and promote the song itself or Kanye’s Life of Pablo album, and therefore acts as an advertisement.
First Amendment Arguments
An individual’s right of publicity must be balanced against the First Amendment, which guarantees the right of free expression. In California, when balancing these interests, courts look at whether the accused work is sufficiently “transformative,” meaning that it adds some new creative elements beyond the likeness of the celebrity.
In Comedy III Productions v. Saderup, the California Supreme Court held that an artist’s rendering of the Three Stooges on t-shirts was not sufficiently transformative to shield the artist from the right of publicity claims. Comedy III Productions, Inc. v. Saderup, 25 Cal. 4th 387 (Cal. 2001). The court stated that the critical inquiry to determine whether the use is “transformative” is whether the use of the celebrity likeness is:
one of the raw materials from which an original work is synthesized or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, 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. And when we use the word “expression,” we mean expression of something other than the likeness of the celebrity. . .
Id. (emphasis added).
Transformative elements or creative contributions that require First Amendment protection can also include fictionalized portrayal and subtle social criticism. Id. Furthermore, while many have critiqued Kanye’s video as vulgar and the video is certainly NSFW, the Comedy III decision reminds us that “in determining whether the work is transformative, courts are not to be concerned with the quality of the artistic contribution — vulgar forms of expression fully qualify for First Amendment protection.” Id.
Furthermore, and potentially relevant in the context of analyzing Kanye’s “Famous” video, the Comedy III court went on to state:
On the other hand, we do not hold that all reproductions of celebrity portraits are unprotected by the First Amendment. The silkscreens of Andy Warhol, for example, have as their subjects the images of such celebrities as Marilyn Monroe, Elizabeth Taylor, and Elvis Presley. Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself. (See Coplans et al., supra, at p. 52.) Such expression may well be entitled to First Amendment protection.
Here, the question is whether the use of the pictured celebrities’ likenesses in the “Famous” video is transformative enough to be provided First Amendment protection. In support of his or her right of publicity claim, a featured celebrity could argue that the video is not particularly transformative, as the video shows nearly identical depictions of the celebrities, and therefore Kanye hasn’t transformed the celebrities at all, let alone in any meaningful way. See e.g., Keller v. Electronic Arts, 724 F.3d 1268 (9th Cir. 2013) (applying the Comedy III standard and holding that video game realistically depicting former NCAA quarterback doing what he is notable for did not meaningful transform the plaintiff’s identity).
However, in his defense, Kanye would certainly claim that the video is a creative work and “transformative” as the video’s purpose is not to exploit the featured celebrities to sell albums, but rather a social commentary on celebrity itself. In fact, in an interview with Vanity Fair, Kanye insisted that this video is a “comment on fame.” And, as we have previously noted, West was clearly inspired by the work of the American realist painter Vincent Desiderio.
It remains to be seen whether any of the featured celebrities in the “Famous” video will take Kanye up on his challenge to sue, and if so, whether they would be successful under a right of publicity theory.