Since 2009, Kanye West and Taylor Swift have breathed life into this seemingly never-ending, illuminating battle between each other. Now Kanye’s wife, Kim Kardashian West, has joined the most recent feud regarding Kanye’s reference to Taylor in his timely and classic hit, “Famous” off of his latest album, The Life of Pablo. In the song, Kanye says, “I feel like me and Taylor might still have sex…Why? I made that bitch famous…”
While Kanye claims that he got permission from Taylor to use her name in those lyrics, Taylor’s PR rep disputed it, stating that "Kanye did not call for approval, but to ask Taylor to release his single 'Famous' on her Twitter account. She declined and cautioned him about releasing a song with such a strong misogynistic message. Taylor was never made aware of the actual lyric, 'I made that bitch famous.'"
In response, it appeared that Taylor publicly shaded Kanye at the 2016 Grammy awards with comments such as, “…there are going to be people along the way who will try to undercut your success or take credit for your accomplishments or your fame, but, if you just focus on the work and you don’t let those people sidetrack you, someday when you get where you’re going, you’ll look around and you will know that it was you and the people who love you who put you there.”
In an attempt to clear her husband’s name, Kim Kardashian West publicized a video conversation on Snapchat between Kanye and Taylor discussing the controversial lyrics in Famous. Kimye (Kanye and Kim Kardashian West) tried to prove to the public that Taylor had knowledge and approved the lyrics in Famous based on the following alleged responses by Taylor during the recorded call, “I know this is like a compliment….um yeah. I mean go with whatever line you think is better. It’s obviously very tongue-in-cheek either way.” Taylor, on the other hand, says the call was secretly recorded and that the footage doesn’t address the part of the song that calls her a derogatory term.
Since the release of the video conversation, Taylor has threatened Kimye with violating wire tapping laws in the state of California. According to Cal. Penal Code §632, a “two-party consent” law is followed. This means that California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation.
The statute applies to “confidential communications” – i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 21 Cal. App. 3d 1204 (Cal Ct. App. 1989).
Could Taylor have a reasonable expectation that no one is listening in or overhearing the conversation? One argument in Kimye’s favor is that they are pretty much always recorded, whether it’s for Kim’s show, Keeping Up With The Kardashians, or another platform of recording due to their exceptionally high celebrity status. However, if Taylor decides to pursue this claim, it would be up to a judge or jury to determine the weight of such arguments.
Although the violation of the wiretapping laws is a separate issue, Kanye likely did not need consent to mention Taylor in the song. The First Amendment protects such expression as exemplified in Lohan v. Perez. Here, U.S. District Judge Denis Hurley ruled in favor of the defendant, stating that Pitbull mentioning Lindsay Lohan in his song, Give Me Everything, by saying, “So I’m tiptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan” was not a violation of any of Lohan's rights. Judge Hurley considered this to be a protected work of art.
Will Taylor Swift dominate in a potential lawsuit against Kanye and Kim Kardashian West for violating wiretapping laws in the state of California? She may also have claims for other related lawsuits for violations of her right of privacy, intentional infliction of emotional distress, or defamation of her character. Let's stay tuned and see how this plays out.
Disclaimer: This post is not intended as legal advice.
Written by: Kayla Pansy,
Managing Editor, Entertaineur, Esq.,
3L UGA Law