Why Kanye West’s “Famous” Video May Be Legally Protected Thanks to Hustler Magazine

BY TER STAFF

Photo by Dan Garcia/The Early Registration

Photo by Dan Garcia/The Early Registration

Everyone and their mother has an opinion about Kanye West and his new music video for his The Life of Pablo record, ‘Famous’. The video, which debuted last Friday night to a sold-out crowd at The Forum, depicts a number of nude celebrities that have played some sort of huge role in West’s life. Whether it’s Taylor Swift to his right, Kim Kardashian-West to his left, or even George Bush, a number of life-like wax figures were created for Kanye’s newest piece of art. While there is a lot of speculation whether some of these celebrities will sue Kanye, Mr. West is gladly inviting everyone to try him with a lawsuit, however he may be safe due to an unlikely source.

Decades ago, the U.S. Supreme Court made a unanimous decision in the case of Hustler Magazine, Inc. v. Falwell. The 1988 case was a result of a parody advertisement that Hustler placed in its November 1983 issue, that depicted the famous minister and political leader (Falwell) as a drunk who had a sexual relationship with his mother in an outhouse. As a result, Falwell sued for libel, invasion of privacy and intentional infliction of emotional distress, and at the lower court level, he won $150,000 in damages for the offensive advertisement.

Lucky for Hustler and a future Kanye West however, the magazine’s attorneys decided to appeal and the Supreme Court took on the question of whether the First Amendment (freedom of speech) protects offensive statements about public figures, especially when it results in the suffering of emotional distress. And in an unanimous decision, the Supreme Court answered yes. Since Falwell was a public figure, he was not able to recover for intentional infliction of emotional distress because a person would not reasonably believe that the offensive speech in this case was an actual fact. Therefore, because no one would actually think that this ad in Hustler was real and accurate, their speech was protected by the First Amendment.

This decision was huge for free speech in relation to public figures and celebrities, and fast forward over two decades later, this very case applies to the protection of Kanye West’s newest music video. While we still live in America, and people can sue for almost any reason, that does not mean they will be successful. And because of the decision in Hustler v. Falwell, anyone that takes on Kanye West in court over his ‘Famous’ video will have a tough time. Not only is the video arguable not offensive or defamatory, since nudity is artistic and beautiful (one could easily argue) and not by itself offensive, but no reasonable person, especially given all the press this video has received, would actually think that the video showcased the actual nude body of Taylor Swift, George Bush and more. While the wax figures were remarkably life-like, they were obviously not the real celebrities that the figures portrayed.

I can easily understand why a celebrity would be upset, but they can blame the attorneys from Hustler. If the Supreme Court unanimously decided to protect a porn magazine from suggesting that someone is a drunk who has sex with their mother, then the majority of courts could certainly decide to protect an artist (inspired by well-known painting) from simply using nude wax figures of famous celebrities in his piece.

Kanye may not have to wait too long before someone calls his bluff and sues him, but I have a feeling he will be just fine.

 

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