By Maureen T. DeSimone
Kanye West’s new album The Life of Pablo “dropped” on February 14, 2016. In the song “Famous,” Kanye raps, in reference to pop singer Taylor Swift, “I feel like me and Taylor might still have sex/I made that bitch famous.” The lyric seemingly refers to Kanye’s now infamous “Imma let you finish” interruption of Taylor’s 2009 MTV Music Video Awards Speech where he argued that Beyoncé had the best video of the year, not Taylor. The two stars had seemingly put the 2009 incident behind them and became friends. Taylor was even quoted in an October 2015, article in GQ that: “And to now be in a place where Kanye and I respect each other — that’s one of my favorite things that has happened in my career.”
Days after The Life of Pablo “dropped” Taylor released a statement denying that she consented to the lyric’s “strong misogynistic message.” Taylor claimed that she did not give her approval and never actually heard the lyrics to the song prior to it being released. Kanye claimed that he called her and got her permission. Kayne tweeted that he “called Taylor and had a hour long convo with her about the line,” and she “thought it was funny.”
Following the release of the album, Taylor’s brother Austin Swift posted a video of him throwing his Yeezy sneakers in the trash. Taylor’s model friend Gigi Hadid who attended Kayne’s Yeezy Season 3 launch tweeted: “My attendance somewhere does not mean I agree with everything being said in the music playing there. My friends know of my loyalty.” Selena Gomez tweeted her support of Taylor. Khloe Kardashian tweeted her support, as did her sister Kourtney. Hollywood was taking sides.
In a GQ interview, articled published on June 16, 2016, Kim Kardashian stated that she and her team have a video to prove that Taylor agreed to the lyrics. She stated that a videographer filmed the call. Apparently, Kanye has a videographer videotape everything when he recording an album. She claimed that a lot of “respected people” in the music business heard the conversation. She also stated that Taylor’s attorneys sent them a cease and desist letter ordering them not to release the video. Kim thought that maybe someone from Kanye’s team told Taylor about the video, implying that Taylor did not know about the video.
On June 17, 2016, on her Snapchat account, Kim posted videotaped clips of the conversation between Kanye and Taylor in which she claims Taylor agreed to the use of the lyrics in “Famous.” The video appears to have Taylor enthusiastically agreeing to something, but what she is agreeing to is not entirely clear. The video posted is of Taylor speaking to Kayne on his phone (on speakerphone). It has her agreeing to the idea behind the line, but it is not clear if she ever heard the exact lyric in full based on the clips provided. At one point in the video Kanye reads the lyric “I feel like me and Taylor might still have sex” to Taylor and she responds that “it’s like a compliment kind of.” She also told him to use “whatever line you think is best.” She thanks him for telling her and calls it really nice. He thanks her for being “so cool about it.”
Taylor posted on her Instagram following Kim’s Snapchat post that she never heard the lyric calling her “that bitch.” She stated that she never heard the song and cannot approve of a song she never heard. The Instagram post was captioned: “That moment when Kanye West secretly records your phone call, then Kim posts it on the Internet.”
What are the legal implications? TMZ claims to have Taylor’s February cease and desist letter. TMZ reported that Taylor has threatened criminal prosecution under the California wiretapping/eavesdropping statute, which makes it a crime to both overhear a private conversation between people and to use an electronic device to either record or overhear a private conversation. Taylor, who states that she was humiliated by the song lyrics, as well as the Snapchat videos, could also file a civil action against Kanye and Kim for defamation and intentional infliction of emotional distress.
Under Section 632 of the California Penal Code, it is a crime to record a telephone call unless all parties are informed that it is being recorded. While this is a criminal statute, Taylor can file a tort claim based on the statutory violation. However, if Taylor knew that Kanye was on speakerphone and that Kim (or anyone else) was listening in or could have been listening in, she cannot claim that she believed it was a private conversation. It all turns on whether the conversation was deemed confidential to Taylor. The problem for Taylor is that Kim stars on her own reality television show and seems to tape everything. Her whole life is recorded it seems, from her Instragram post to her Snapchat stories. So, would it be completely unreasonable for Taylor to wonder if Kanye was having their conversation recorded? Further, if Taylor knew Kim was there then it was not a private call. It seems that if Taylor had knowledge that the conversation might have been recorded she would not have a wiretap claim.
Defamation encompasses both libel (written defamation) and slander (spoken defamation) and refers to false statements that ruin a person’s reputation. Since Taylor is a celebrity, classified as a public figure in defamation law, in order to succeed in a defamation claim, she would have to prove actual malice, i.e. that Kanye either knew that the statements were false, or that he was reckless with the truth. She would have to prove that Kim and/or Kanye intended to ruin her reputation, or that it was substantially certain that injury to her reputation would occur.
To prove damage to her reputation, she would say that it affected the allegiance of her fan base. To prove this, she would likely turn to her finances. Forbes reported on July 11, 2016, in its Celeb 100: The World’s Highest-Paid Celebrities Of 2016, that Taylor tops the list with a 2016 profit of $170 million. Now, maybe if she makes less next year she has a claim. Considering she will likely be taking next year off her world tour, she would naturally make less money. Only time will tell. For the record, Kim was number 43 at $51 million; Kanye did not make the list and his business is reportedly filing for bankruptcy.
There are several defenses to defamation available to Kanye and Kim: that the statements were true; the statements were merely an opinion; there was consent to publication; or he has retracted the statement. It is likely that the statement “I feel like me and Taylor might still have sex” would qualify as a mere opinion especially since he qualifies the statement with “I feel.” Further, the Snapchat video shows Kanye reading the lyric “I feel like me and Taylor might still have sex.” Taylor even responds that “it’s like a compliment kind of.” So, he did get consent for that lyric at least. However, the statement “I made that bitch famous” is more complicated. He would have to prove that it was true, or retract his statement and apologize. I do not see Kanye apologizing anytime soon.
Even if she were able to prove actual malice, it would be difficult to prove her damages. She cannot recover in a tort case if there has been no injury. She would likely cite emotional distress as her damage, as well as damage to her reputation, which is why defamation cases often also include intentional infliction of emotional distress claims. Taylor would have to prove that: the lyric was written or recorded to cause harm to Taylor, or that it was substantially certain that harm would occur; the behavior was extreme and outrageous; the conduct caused the harm; and she suffered severe distress. Taylor may even want to claim that the Snapchat video being posted caused her emotional distress.
Kanye (and/or Kim)’s best defense would probable be to say that the behavior was not extreme or outrageous, or that Taylor is unusually sensitive—that a reasonable person would not be upset by the lyric. This is probably Taylor’s best claim as long as she can show harm or damages by showing emotional distress (usually in the form of medical/psychological records) and/or that her work or some other part of her life was suffering.
While she may not have suffered any financial harm, the lyrics could have potentially damaged her image with her young, mostly female, fan base. However, Kim and Kanye would likely argue that the incident, like the MTV Video Music Awards incident actually increased her visibility. But that is the issue is it not? He is claiming he made her famous. Did he? The truth is, after all, an absolute defense in defamation cases, and if she is more famous, perhaps there are no damages.
Student Bio: Maureen is night student at Suffolk Law and expects to graduate in May 2018. She has a Certificate in Paralegal Studies from Suffolk University and a B.A. in English with a minor in French from Stonehill College. She has been working as a litigation paralegal since May 2010. Maureen is a proud Taylor Swift fan, since 2006 when Taylor released the single “Tim McGraw.”
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
