On Monday, Kim Kardashian joined the War of the Gargantuas, between Taylor Swift and Kardashian’s hubby Kanye West, when she posted video to Snapchat of a phone conversation between the rapper and pop star. In the clip, Swift appears to give approval of the lyrics West wrote about her for his Life of Pablo track “Famous,” in which he raps, “I feel like me and Taylor might still have sex.” If the video is an accurate portrayal of the conversation, which is doubtful since West claimed he talked to Swift for an hour and the Snapchat is considerably shorter than that, it would contradict Swift’s prior claims that the pair had only talked about whether she would post the song to her social media.
Swift issued a response to the post on Instagram highlighting that the video didn’t show West asking her if he could call her “that bitch” in the next line of the track (“I made that bitch famous”) – a phrase she previously described as “misogynistic” – because, she claimed, it didn’t happen. On Instagram, she characterized the move of posting the video as “character assassination,” and TMZ reports that in February, her lawyer sent a letter demanding that video of the phone call be destroyed under California wiretapping laws.
So what legal recourse does Swift have? Were her rights violated and, if so, how? Rolling Stone spoke with numerous lawyers to analyze the situation. Stan Soocher is an associate professor at the University of Colorado Denver, where he teaches Music and Entertainment Studies; he’s also the author of They Fought the Law: Rock Music Goes to Court and Baby, You’re a Rich Man: Suing the Beatles for Fun & Profit. Jeffrey Brown is a partner at Michael Best & Friedrich in Chicago, where he concentrates on intellectual property.
The pair came up with several hypothetical causes of action that Swift could pursue in the matter, and both agreed that West has the right to mention Swift in song under the First Amendment. But if the singer wanted to sue West, here’s what her legal team would consider:
The Right of Privacy
Under California laws, both parties would have to consent to the recording of a conversation. New York and Tennessee require only one party to consent. It’s unclear where Swift and West were when they talked. “If it is California, which is what people are speculating, there would be a violation of Taylor Swift’s right of privacy if she had not been informed that the conversation was going to be recorded or if she wasn’t aware that someone was eavesdropping on the call, that’s where Kim comes in,” Brown says. “It would be a violation if she had a reasonable expectation that this wasn’t being recorded or overheard and that she was harmed by it. Whether she was harmed, that’s really speculative here.”
Does having her on speakerphone demonstrate she gave up some right of privacy? “Not necessarily,” Soocher says. “If you’re on a speakerphone, you tell someone they’re on a speakerphone. But did he reveal it to her? Did she feel that nevertheless he was in the room by himself? That isn’t necessarily clear.”
“If people are making copies of the Snapchat video, it’s still out there. It wouldn’t block a defamation lawsuit.”
Intentional Infliction of Emotional Distress
“Is there anything based upon the use of the word [‘bitch’] that’s such a strong word, was it meant to be distressing?” Soocher asks. “However, looking at the transcript where Taylor says, ‘Go with whatever line you think is better,’ makes you wonder whether or not she was giving him creative carte blanche. Was she waiving any potential defamation claim regarding the use of the word bitch in a Kanye song?
“But what’s also interesting,” he continues, “is she says that after Kanye says, ‘I want things that make you feel good. I don’t want to do rap that makes people feel bad.’ So is what she is saying there, ‘Go ahead and say something nice about me’?”
What would Kardashian’s role be in this cause of action? “She may be subject to this claim, especially with the history of Kim and Kanye and Taylor,” he says. “It could be intentional infliction of emotional distress by knowingly putting this up on Snapchat.”
“Is Kanye West calling Taylor Swift a bitch defamatory? No, that’s Kanye,” Brown says. “Has it brought her down in the eyes of her fans and the record-consuming public? Probably not. It’s disparaging, absolutely. It’s offensive, absolutely. Is it defamation? No, I think it’s Kanye.”
“Was it meant to be rhetorical hyperbole?” Soocher asks. “Was it meant to be something that’s so beyond what what’s true – hyperbole – that just saying doesn’t make it so. The more outrageous a statement is about a person, the less likely that person may prevail on a defamation claim. If she ever decided to file a defamation claim, it would be all about her reputation.
“Is it defamation? No, I think it’s Kanye.”
“Another thing about the word ‘bitch’ is, is the word in such common use today – especially in the music industry – that it’s not as strong as it used to be?” he continues. “That may or may not be defamatory. It could be two different extremes.”
Is Kardashian culpable? “Even though it’s Kanye and Taylor talking, the fact that Kim released it would put her in the line of fire with regard to any defamation claims,” Soocher says.
Breach of Contract
“The transcript of the conversation doesn’t indicate that Kanye made any promise not to release the tape to anybody,” Soocher says. “If he had promised not to release this video, there might be a breach of contract claim, but it doesn’t appear to be.”
Right of Publicity
This cause of action typically ties into the use of somebody’s likeness in the selling of something without their permission. Since releasing this video doesn’t appear to sell anything, it would be a long-shot. “If they were using this segment to get fans to watch Kim’s show or to bolster Kanye’s publicity or career in some fashion, they could pursue this, but it’s not something that readily fits into a publicity cause of action,” Brown says. “It would be something where somebody would say, ‘Hey what can we cook up here?’ Or if you’re a law-school professor, ‘Here’s some extra credit.’ I don’t think it’s a viable claim.”
“With interviews, the copyright office says that the interviewer has one copyright and the interviewee has a separate one,” Brown says. “It would be pushing the envelope, but she could say, ‘Hey, you violated my copyright by publishing this.'”
“Taylor could say it’s a recording and that she’s a co-author of it,” Soocher says of the video. “Kanye would have to pay Taylor as a co-author, if there were any profits generated from the portion of the tape that was published.”
Does it matter that it was on Snapchat, which deletes videos after a certain amount of time?
“No, once it’s out there, it’s published,” Soocher says. “Think about a magazine. If an issue is out for two weeks and then another one comes out, people can still access it. If people are making copies of the Snapchat video, it’s still out there. It wouldn’t block a defamation lawsuit, but its short life may help a little with damages.”
So, is a lawsuit worth it?
“Certainly, she can afford the legal fees,” Soocher says. “If she wants people to know that she’s fighting it, filing the lawsuit would generate quite a lot of publicity. Her legal team would have to weigh the benefits of a lawsuit.”
“I don’t think a lot of people in Taylor Swift’s position pursue any of these types of claims,” Brown says. “But somebody who really wanted to do something would throw any cause of action out there that they can. It would be defamation, right of privacy, copyright claim, anything they could scrap together with the hope that something would stick. But I don’t think that this would be anything that gets pursued unless Kanye and Taylor Swift think it’s worth pursuing – they could be in cahoots here. I don’t see any real legal harm that she’s suffered here.”
What would really be at stake?
The most pressing cause of action would be Swift’s right of privacy. In that case, all that would be at stake is about $5,000, the statutory limit someone could sue for in California for the right of privacy. It could also be three times the actual damages – money lost – which in this case is nothing. “I don’t think there’s any reason here to spend hundreds of thousands of dollars in legal representation unless it’s going to sell some records or concert tickets down the road,” Brown says.