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Celebrity IP - can Kanye West be sued?

Celebrity IP- many people may come to mind where people have become brands such as the Kardashians metal. But Taylor Swift and Kanye West- who thinking, can Kanye West be sued? Political conventions may have stolen some of that spotlight , but for IP’s sake, we’ll focus on West and Swiftie. Although we could get into Michelle Obama’s intellectual property rights to her convention speech…

Actually, never mind.

Ignoring the long-standing drama between Kanye and T-Swizzle, questions arise around his right to use Taylor Swift’s name in his song “Famous,” as well as her likeness and nude imagery in in the music video.

Understandably, there are likely several ways that Taylor felt violated (although she is also no stranger to shady lyrics where she failed to get permission to speak about the boys who inspired her revenge songs).

 
 
 
 

As with all legal matters involving intellectual property, the devil is in the details. West called her out by name and used her naked imagery, whereas Taylor just made it obvious who she was talking about with her lyrics.

On July 1, 2016, Kanye West posted a video for his song “Famous” that shows him in bed with nude wax figures of celebrities. You can see the video on YouTube (you’ll need to sign in to verify you’re of age). According to YouTube, the video now has over 11 million views (by the time that you read this post, it will probably be well over 12 million!).

Make sense so far? Great! So what are people asking about?

Everyone wants to know (including Kanye, apparently): can Taylor and other celebrities sue Kanye West for using their nude likeness in his music video?

Threats of lawsuits have been rumbling. West himself brought up the possibility with his quotable line “Can somebody sue me already?”

So would any of the celebrities who were lucky enough to be featured in a Kanye video be able to sue the rapper?

One ground for a lawsuit is that these nude dolls in the video are violating the celebrities’ intellectual property (IP) rights.

 
 

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Wait… what exactly is IP and why is it important?

IP is the property of ideas. It is also called “intangible property” because you can’t hold it in your hands. Instead, IP protects the rights to creativity, innovation and ideas, which enable individuals to benefit from their ideas that they share with the public.

When Kanye West created his song “Famous,” he automatically gained certain IP rights to the work as the performer of the song and as one of the songwriters. IP rights determine the extent to which creators can control their works and charge money for others to use them.

However, the celebrities featured in the video as nude wax dolls also have IP rights that may or may not have been infringed upon. The most relevant IP rights in this case are copyright, trademark and right of publicity.

WHAT IS COPYRIGHT?

Copyright protects artistic and creative work- basically any type of creative content.

Some copyright can be used to protect include printed material, contents of websites, images, and of course, videos and music.

The power of copyright is that it protects not only the original work, but also derivative works that is, creative ideas based on or derived from the original copyrighted idea.

Would copyright apply here?

Actually, it’s unlikely that copyright would apply in this case. The controversy is over naked life-size wax dolls that are shown in bed with Kanye West. While the dolls are clearly representations of actual celebrities, the likeness of a human isn’t protected by copyright. If it were, then even public photographs of public figures by paparazzi would always be banned without permission of the celebrity.

What could be protected by copyright is if the statue were created from a photograph or another image of the celebrity and if Kanye West (or the creator of the statue) didn’t get permission to use it. In that case, the original work is the photograph, and the statue would be a derivative work which is a no-no in copyright unless you have a license.

LIMITATIONS OF COPYRIGHT

In some circumstances, a derivative work of art so reimagines the original artwork that it “transforms” the original and is no longer considered derivative. The rules are quite strict about how much one must change the original artwork (spoiler: a lot!), but it’s still possible to defend a new work of art and avoid copyright infringement.

Bottom line-will the celebrities in Kanye’s video win with a copyright case? Not likely as there are difficulties in identifying a specific copyrighted work that was violated, and since Kanye West has an artistic defence.

It’s interesting to note that Kanye West has already gotten in trouble over an actual copyright issue. He is currently being sued for copyright infringement, himself. In that case, Kanye is accused of sampling another song without getting a license (similar to Vanilla Ice and his use of the music from “Under Pressure” by Queen and David Bowie). If Kanye did use an unlicensed sample, that is illegal?—?to use a work by another creator, you must first acquire permission from the copyright owner.

WHAT IS A TRADEMARK?

Trademarks are usually used to protect your name, logo or slogan or “marks.” These marks are used to identify goods or services being sold-the “trade.” Some examples of famous trademarks include Coca-Cola® and IBM®. The “circle-R” symbol (®) is used to designate a trademark that has been registered with the USPTO.

For more information on protecting your name with a trademark, check out our detailed post.

The power of trademarks is that they specifically protect your name, logo or slogan, even if used in different contexts.

Can you protect your personal name with a trademark?

It is possible for celebrities to protect their personal names with trademarks, if they are shown to have secondary meaning for example, if the name is associated with a particular type of goods or services. Kylie Minogue has a US trademark for her personal name, for cosmetics and personal care products, and jewelry. These trademark rights would extend to domain names as well.

Can any celebrities be protected in Kanye’s video by their trademark rights?

I watched the video and I didn’t see any celebrity names shown on screen, but I did hear Taylor (first name only) specifically mentioned by name.

Simply mentioning a celebrity’s name isn’t necessarily a trademark violation, anyway. The celebrity’s name would need to be used without authorisation to sell goods and/or services that are covered by a registered trademark.

This also means that the celebrities would need to have registered trademark protection for their names or, alternatively, that they have a strong enough case to use much weaker non-registered trademark rights.

Bottom line, will the angry celebrities win a lawsuit with trademark infringement? Probably not.

RIGHT OF PUBLICITY

The right of publicity, as described by the American Bar Association, is “an individual’s right to prevent others from commercially exploiting his or her identity without permission.”

Under this right, a person’s image becomes their property and can’t be used for third-party commercial gain unless that person grants permission.

What’s the problem with right of publicity?

Unlike trademarks and copyright, which are based on federal law, the right of publicity is based on state laws which, as you can imagine, vary by state. This is problematic because an action could potentially be against the law in one state, but perfectly legal in another.

In fact, California has two different sets of “right of publicity” interpretations, one of which is much broader than the other. For example, under California state law, an imitation of a celebrity voice would not be protected but under common law (interpretation by the courts) it could be. While California state law requires a connection to advertising by the violator, California common law appears to simply require that the violator obtained an advantage (this information and a deeper discussion of what it means can be found at the Digital Media Law Project).

So even within one state, the law is highly variable.

Could Kanye West be violating the right of publicity of the celebrities shown in the video? He would argue an artistic right to use these celebrity wax dolls, but under California common law for right to publicity, he could be in trouble for obtaining commercial gain through the video.

Kanye West would argue that his video is an artistic work and is not being used to promote any goods or services.

On the other hand, a music video is being used to promote commercial interests namely, to sell more copies of the song featured in the video. He is therefore not completely in the clear on this point.

So has the incredibly popular music video actually helped the song achieve commercial gain? It’s questionable-before the release of the video, it wasn’t a huge hit. As of July 19 2016, “Famous” had only reached number 34 on the Billboard Top 100 at its peak position one of the worst results for a Kanye West single.

Now “Famous” is at number 71 as of July 26 up from the 88 spot last week. The controversial video may push “Famous” back up the charts through increased exposure to the song… but don’t hold your breath.

Bottom line-As noted above, the broad California right of publicity, as determined in common law, could ensnare Kanye West, even if the video were to be primarily defined as an artistic work.

Let’s wrap it up.

Can celebrities shown as nude wax figures sue over IP rights? After our long tour through Federal and State IP law, the bottom line seems to be that trademark and copyright IP rights won’t stop Kanye West’s video, or allow a celebrity to collect damages.

But right of publicity, especially in California, could leave him liable to damages.

Could a patent apply here?

Compared to the strength of patents, the scope of coverage of trademark, copyright, and even the right of publicity is quite limited with. These only protect very specific ideas in very specific ways, which can lead to activities that seem like they should violate IP law… but are, in fact, perfectly legal.

Patents, however, are a much broader right they protect an entire idea, plus a potentially very wide area around that idea.

In other words, a patent means that even similar ideas not just identical ones are protected.

Why a patent provides more extended protection.

Patents protect a technological idea and many potential variations of that idea. Trademarks and copyright, by contrast, tend to be more specifically limited to the exact idea under protection.

Why? It gets down to the history of intellectual property. Patents were meant to encourage publication of the details of new technical innovations so that inventors wouldn’t keep their ideas secret, and so that the public could benefit from this knowledge.

Bottom line? Celebrities who don’t want to end up as naked dolls in Kanye West videos don’t have a lot of options, but suing in California under right of publicity would probably be the best choice.

Patents don’t protect naked dolls in videos (or naked celebrities for that matter), but they do provide broad protection for innovative technologies, much more so than a trademark or copyright.