Amid a last-ditch presidential campaign, one that has been peppered with “reports suggesting Republican-affiliated operatives are working to get [him] on the ballot in several states, as part of a strategy to use [him] to siphon votes from the party’s leading candidates,” Kanye West posted what appears to be a campaign poster to his Twitter account on Tuesday. Alongside its slogan “Kanye 2020 Vision”, which is a close play on the logo of cult skate brand Vision Street Wear, the poster consists of an array of images, one featuring a Vogue editor laughing Anna Wintour, another portrays actress Kirsten Dunst through a photo from a Vanity Fair profile from 2002, and the list goes on.
As Vanity Fair’s Emily Kirkpatrick reported Thursday, in addition to Wintour and Dunst, the poster also includes “photos of singer Mike Yung, who was a semi-finalist on America’s Got Talent in 2017; Akhona, a man who appeared in a South African Gilette advertisement in honor of Women’s Day; Hena Din, senior clinical research officer at Stanford University’s Center for Allergy and Asthma Research; a photo of a man at a pro-life vigil in 2017 ahead of the March for Life; and [an array of] stock images”, including that of construction workers, among others.
As it turns out, Dunst’s photo turned out to be the most controversial. On Thursday, the “Spider Man” actress posted her own tweet: “What’s the message here, and why am I a part of it?” she asked. A representative for Dunst, who backed Senator Bernie Sanders for president in March, confirmed to People magazine that she did not consent to the use of her image. Meanwhile, a spokesperson for Vogue revealed that “Anna has been a deeply committed supporter of the Democratic Party for many years and is very committed to helping Biden/Harris win in November.”
Legally protectable likeness is part of what’s at stake here, and it’s (part of) what could turn an otherwise harmless(?) poster/tweet into a hypothetical legal battle.
A problem of image rights?
Since neither Dunst nor her representatives appear to have given Kanye permission to use a photo of her (i.e. her likeness) for promotional purposes, the situation raises a red flag from a privacy rights perspective. advertising. As a doctrine of state law, the right of publicity generally prevents unauthorized commercial or promotional use of an individual’s name, likeness, or other recognizable aspects of personality. West’s wife, Kim Kardashian, for example, has brought a number of publicity rights cases over the years when others used images of her without her permission – from that of 20 million dollars she filed against Old Navy in 2011 in the most recent legal battle. she filed a lawsuit against fast fashion company Missguided.
In California, where there are statutory and common law causes of action for violation of the right to publicity, the state court of appeals ruled (in Eastwood v. Superior Court) that the common law elements generally include: (1) the appropriation of a plaintiff’s name or likeness for the benefit of the defendant, commercially or otherwise; (2) lack of content by the applicant; and (3) the resulting harm to the plaintiff. California’s right to publicity law goes further, requiring that the defendant’s use be “knowing” and that there be a “direct connection between the use and the commercial purpose.”
Given that a photo that features Dunst’s likeness was in fact used on the political poster without his permission, the questions in such a hypothetical case would likely hinge on whether Kanye’s use of his likeness is for any purpose. “commercial” or for “the advantage of the defendant, commercially or otherwise” (instead of falling within the bounds of the First Amendment). More than that, it is worth considering whether Dunst was damaged as a result of such use.
With respect to the first point, when considering “commerciality,” advertising campaigns and things of that nature may come to mind, since California law (Civ. Code § 3344) defines “the ‘commercial use’ as being ‘for the purpose of advertising or selling or soliciting purchases of products, merchandise, goods or services’.
That’s not exactly what’s happening here; promoting a political candidate is probably not a business transaction (i.e. one that sees parties exchanging goods/services for some type of compensation). But the analysis does not stop there. As Loyola Law School professor Jennifer Rothmans explains on her site, “Courts applying California law have allowed the right to publicity in the context of non-commercial speech, including political campaigning, video games, comics and t-shirts”.
Similarly, the Digital Media Law Project at Harvard University’s Berkman Klein Center states that, unlike California state law, “common law law is not explicitly limited to commercial uses of identity of a complainant”. However, “the less ‘commercial’ a use is, the more First Amendment concerns come into play.”
As for the question of damages, in a hypothetical case, Dunst would almost certainly point to his reputation and call fault. In addition to reparations for the financial harm that a plaintiff has suffered as a result of a violation of image rights, courts may also take into account “damage to peace, happiness and feelings”, as well as ” damage to goodwill, professional reputation, and future publicity value,” as the United States Court of Appeals for the Ninth Circuit has held in the past.
Here, Dunst can argue that association with West’s political campaign damaged her reputation and hindered her ability to market her likeness on her own. Simply put, from the fact that she’s appeared on the political poster, movie studios, consumer goods brands, etc., may think she’s somehow affiliated with – or endorses – “Kanye 2020 Vision,” thus making her less likely to get the jobs she is vying for, or perhaps, has already booked.
Beyond the potential right of publicity, a cause of action at stake for Dunst (and presumably the others depicted in the poster), copyright law would also be a plausible assertion, assuming West doesn’t has not licensed – or received permission to use – the images. , themselves, (separate from the portraits of the individuals) on his presidential banner of the respective copyright holders, whether Vanity Fair or Mario Testino (this would depend on the contract between the magazine and the photographer) for Dunst’s photo , Amy Sussman/Getty Images North America for Wintour’s likeness at Donna Karan’s Spring/Summer 2012 show in New York, and more.
As to whether West’s use of the images would fall within the realm of transformative use, which would be a relevant defense to both publicity right and copyright infringement claims, West could be able being able to craft a creative argument on that front, particularly if his run is an elaborate and controversial artistic ploy or something in that vein. (As Vox’s Dylan Scott recently wrote, “As with much of West’s career, it’s hard to discern where sincerity ends and showmanship begins”).
It’s unclear what West is actually up to with his relatively recent presidential run. However, as Kyle Kondik of the University of Virginia Center for Politics told the publication, “I think we have to wait and see if he actually runs for office in crucial states before [making any] ratings. So would such a potential (although almost certainly not viable) defense.