Kanye West released his much-anticipated “Famous” music video. In the video, Kanye portrayed celebrities such as Former President George W. Bush, Donald Trump, Taylor Swift, Ray J, Chris Brown, Anna Wintour, Rihanna, Kim Kardashian West, Bill Cosby, Amber Rose, and Caitlyn Jenner, naked laying in a bed next to himself. Obviously, these were not the actual celebrities in the video, but that does not mean that Kanye was allowed to use their look-alikes in the video.
Right of publicity is the right for an individual to control his/her name, image, likeness, voice, or other identifying feature for commercial purposes. This means that if you want to use a celebrity for an advertising campaign you must pay them for a license. California has one of the strongest laws protecting right of publicity, it states that you can not use a party’s name, image, or likeness for any commercial purposes.
However, Kanye may have a defense to the right of publicity claim. He could argue that the First Amendment protects his right of free expression. Expressive works include books, magazines, movies, and other artistic works. What is considered an expressive work is at the court’s discretion, meaning there is no absolute definition of what is covered.
Previously, courts have ruled that using look-alike celebrities is still a violation of right of publicity. A factor weighing against Kanye is that he made the video in order to make money from people watching it, a clear commercial purpose. Kanye would be relying on a court to view his video as free expression, but this is far from a certainty.
The tipping point of this analysis may be that at the end of the video there is a rolling credit list of those celebrities that are portrayed, with no disclaimer saying that they were played by body doubles. Kayne did not take any precautions to ensure that people realize the actual celebrities were not in the video. It seems unlikely that Kanye would be successful in defending a right of publicity claim.