Kanye Wants To Stop Money From Being Made With His Picture On It...

After hearing from the pop star's lawyers, the group behind a new cryptocurrency have put a bit of distance between themselves and Kanye West.

According to a January 10th, 2014 post to The Verge, "[t]he developers of Coinye — formerly known as Coinye West — have responded to a cease and desist letter from Kanye West with their own cease and desist, insisting that an updated version  of their cryptocurrency is unrelated to the singer and now references a "half-man-half-fish hybrid who is wearing sunglasses.'"

Students of intellectual property law know that celebrities are increasingly bringing legal actions against companies that use their images or reputations (without permission) to market products or services. And even dead stars (via their heirs) are getting into the business of exploiting celebrity and using legal tactics to discourage unauthorized uses.

You don't need to date a Kardashian to have an inflated sense of the commercial value of your name. But Kanye's penchant for grandiosity and the uncertainty about just how much protection stars should have when it comes to products that mock them makes this an especially volatile and interesting case. 

I know my opinion isn't shared by most lawyers, but I think that commercial uses of a star's name or reputation that involve parody - which implicates the First Amendment  - deserve special treatment: The right to mock a celebrity without fear of laws that prevent such criticism and commentary may require that celebrities develop thicker skins - much like they have had to do when it comes to defamation.

While the copyright law gives parodists pretty broad latitude to mock stars (the Kanye-is -a-gay-fish meme originated in a South Park episode that first aired in 2009, see video below), the right to prevent others from using a star's name or image to promote a commercial enterprise can restrict marketers who want to ride the crest of pop culture waves.

Right now, the courts are in the process of working out the balance between the right to parody and right to prevent unwanted exploitation of the right of publicity. As always, the unique facts will matter. 

That's why the outcome of the current dispute between the Beastie Boys and GoldieBlox is still uncertain. I've written elsewhere on this blog about the dustup between GoldieBlox, a toy company that used a parody of a 1980s song in an ad, and the Beastie Boys, the authors of that song. And I can see both sides of that argument. I just happen to think the benefit to society from allowing parodies should outweigh the rights of a celebrity to prevent a certain (very limited) type of unpermissioned commercial exploitation of what that celebrity has made. 

I realize that GoldieBlox v. Beasties is a tough case. But in my opinion, the law should bend in favor of protecting even the unpermissioned commercial use of a star's work - and even a small amount of a star's reputation - when such use is clearly a parody that doesn't deprive the artist of the opportunity to exploit their original work. Yes, GoldieBlox did use the Beasties' music without permission for commercial advantage. But they did so, at least in part, with the intent to parody. GoldieBlox wasn't just using the Beastie's song without adding anything to it. The new lyrics contained a commentary on the sexism of the original Beasties' song- a type of reworking that is the essence of parody. GoldieBlox (in addition to creating an ad) also created a new work with new meaning and import. So I'm hoping that the Beasties back away from their claim against GoldieBlox. It's just my view, but as long as the author of an underlying work can still exploit that original work, why shouldn't the First Amendment favor keeping the government out of it? Using the power of the courts to restrict the benefits that accrue to society from parodies comes at a cost. In a free society those who poke fun at powerful people require and deserve a lot of protection.

This much should be clear: The Beasties and Kanye West never had the right to stop parodies. Under our system of law, no one can use copyright law to stop a legitimate parodist. 

So the theories available to the Beasties and Kanye when they object to a parody often boil down to arguments based on "we're losing money because someone else is using our reputation to make money."  

In other words, the strongest arguments right now for Kanye and the Beasties seems to be in right of publicity and trademark.

But, in his case, Kanye clearly isn't making the Coinyes. And in the Beasties case, no one is buying GoldieBlox toys because they think they've been endorsed by the Beasties. 

So their trademark cases are not the strongest.

It's ludicrous to argue that the public will be confused that Kanye has endorsed a gay fish currency. Similarly, it's hard to imagine anyone at this point buying a GoldieBlox toy because they (mistakenly) think it originated from the Beasties. Fans know their stars, and Kanye doesn't like being mocked and the Beasties have made it very clear they won't be endorsing any products.

Here's another thing that should be clear: It's very hard to generalize about this area of the law. Statutes vary from state to state. And even within a single jurisdiction, some judges may be more eager to protect the commercial interests of stars than others. While Kanye and the Beasties have built up recognizable brands, some non-celebrities have also brought right of publicity claims, arguing that others are exploiting the commercial value of their names without permission (see the Hurt Locker case). Although it's dangerous to generalize... for some judges it seems that the work that goes into building a brand is what deserves protection via the right of publicity and not just the exclusive right to prevent others from telling a fictionalized version of your story. Following that logic... the erzatz Kanye-is-a-gay-fish coin might arguably be more worthy of protection because the real Kanye's image is not what's being exploited. The coin is exploiting a new cartoonish and wildly fictionalized creation loosely based on Kanye. And just like in The Hurt Locker case, a big chunk of the value isn't coming from Kanye but from the work that others have done in fictionalizing him (I'll save any thoughts about the claims the creators of South Park - the creators of the gay fish - might have against Coinye for another post). 

Where does that leave us with the gay fish coins...?

I'd argue that, because... 

1) Kanye isn't marketing his own Bitcoins, and 

2) no one will be confused that Kanye is behind Coinye, and 
3) the commentary about Kanye in Coinye is arguably a form of parody, and
4) parody adds new information to the public discourse and the government should steer clear of interference "with the truth-seeking function of the marketplace of ideas"

... Kanye's lawyers may want to stand down. 

If it was up to me (it isn't), I'd strive to strike a balance where parodies AND the originals could exist side-by-side in the stream of commerce. In my (perfect?) world, Kanye could still sell the authentic Kanye stuff. But an ad that commented on or criticized him could be created - even using some of his original work and elements of his reputation without permission - as long as it was clearly a parody that didn't replace the market for Kanye's original stuff.

Is my balance likely to become the new legal standard? 

No. (Too many powerful interests are making too much money from licensing the names of celebrities to allow parodies that market products to go unchallenged.)

What will happen?

There's an argument to be made that the depiction on the Coinye coin is not really a parody (that should be protected) but a simple rip-off of Kanye's fame. Kanye's lawyers may make that argument. But at this point the Coinye/Kanye beef risks becoming the latest example of what has become known as the Streisand Effect: Kanye and his lawyers have already given Coinye more publicity than they probably expected or deserved. 
So, like I said before, it might be time for Kanye to back away...

Of course, this is Kanye "I'm-crazy-influential" West, so it remains to be seen whether his counsel, Brad Rose of Pryor Cashman LLP, will cut bait or this controversy will swim back to the surface.

Thanks to Carrie Cutforth-Young for the link to The Verge.

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