For the past week and change, our nation’s newsfeed has been little but a relentless stream of toxic horror, spates of fatal violence by enemies foreign and domestic, an endless cycle of vengeance and death with no defendants. What joy, what delight, can we possibly hope to find in this hopeless place?
All hail Kim Kardasian West, who posted a video on Snapchat last night that appeared to vindicate her husband, Kanye West, in the latest round of a never-ending PR battle between Kanye and Taylor Swift. The best part of this installment? It’s hard to choose among such numerous, juicy offerings, but we’ll be zeroing in on this little legal gem: Kanye and Kim could technically be in violation of state privacy laws.
TL;DR (though details down below): Swift accused West of rapping about her in a way she found offensive without her consent, particularly the lines “I feel like me and Taylor might still have sex / Why? I made that bitch famous.” West claimed he’d cleared the lyrics in question with Swift in advance and, with her blessing, released his art into the world. In a recent GQ profile, Kim asserted that Swift “totally approved” the lyrics and “totally knew that was coming out.” Swift “gave the okay. Rick Rubin was there. So many respected people in the music business heard that [conversation] and knew.” In that same article, Kim says that Swift’s attorney sent Kanye a letter “saying, ‘Don’t ever let that footage come out of me saying that. Destroy it.’”
As this reporter noted on Twitter this morning, every generation gets the Nixon tapes it deserves. Here is ours:
— partylikeits2007 (@partylikeits07) July 18, 2016
Oh, the beauty! The glorious fallout! The he-said-she-said of it all! The misguided efforts of Swift’s #squad to support her on social media by negging the rest of us for not aiming our eyeballs at “more important things,” only to be torn apart by Twitter, as is tradition, for their hilariously vapid feeds.
In the video clips, posted oh-so-casually after an episode of Keeping Up with the Kardashians aired, Swift and West sound collegial, even friendly. West, clearly and slowly, raps the lines: “Too all my Southside n — — that know me best/I feel like me and Taylor might still have sex.”
“What I give a fuck about is just you as a person and as a friend,” West says. “I want things that make you feel good. I don’t want to do rap that makes people feel bad.” Swift gives him the go-ahead to use “whatever line you think is better; it’s obviously very tongue-in-cheek either way,” and thanks him for calling her with the heads-up. He, in turn, thanks her for being “so cool about it.” She says she “never would have expected you to tell me about a line in one of your songs.”
While none of the video shows Swift hearing West say “I made that bitch famous,” her responses really only make sense as if she is responding to that phrase: “It’s just you gotta tell the story the way that it happened to you and the way that you experienced it. Like, you honestly didn’t know who I was before that. It doesn’t matter if I sold 7 million of that album before you did that, which is what happened, you didn’t know who I was before that. It’s fine.”
If the “that” to which Swift refers isn’t the “imma-let-you-finish” stage-crashing incident at the 2009 MTV Video Music Awards, what else could it be? (Her numbers, for what it’s worth, are a little off: Swift won Best Female Video for “You Belong With Me” off her album Fearless, which didn’t cross the 7 million in sales mark until the end of 2015, after the release of 1989 and, not incidentally, after Swift pulled her entire back catalog from Spotify.)
“And you know, if people ask me about it, I think it would be great for me to be like, ‘Look, he called me and told me the line before it came out. Like, joke’s on you guys, we’re fine,’” she went on. “You guys want to call this a feud, you want to call this throwing shade but, you know, right after the song comes out I’m going to be on a Grammy red carpet and they’re going to ask me about it and I’m going to be like, ‘He called me’… It’s going to be like ‘Yeah she does, it made her famous.’”
Hours after Kim posted her video, Swift responded on Instagram, maintaining that she had no idea she was being recorded and that Kanye never told Swift he would call her “that bitch” in “Famous.” “Being falsely painted as a liar when I was never given the full story or played any part of the song is character assassination.”
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So: Did Swift know she was being recorded? And what are the possible implications for Kim and Kanye if she didn’t? Kim and Kanye could be in violation of electronic privacy laws. Say the Wests were in California when the call was made — seems likely, given the location of Kardashian/Jenner headquarters — and Swift didn’t know about the recording. California is a two-party consent state: “Every party to a recorded conversation must be made aware of the recording and must give express consent,” said Anthony Varona, media law professor and academic dean at American University.
But there’s a catch, per California Penal Code 632: The statute only holds for “confidential communications,” which is to say, “conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation.”
“Taylor Swift realized that she was talking to Kanye West,” Varona said. “From the recording itself, it sounds like Taylor may have had an understanding — at least, an inkling, that [she was] on speaker. You can always hear when you’re on speakerphone… If she really expected the conversation to have been kept private and confidential, she should have asked him to take her off of speaker.”
Add to that the fact that “Taylor knows that Kanye is married to Kim Kardashian, who is the star of several reality shows. She has cameras and microphones trained on her 24/7. So the question would be, really, whether Taylor Swift has the reasonable expectation that her conversation isn’t being recorded in any way, even without any specific disclosure by Kanye about the status of the phone call.”
“Is it ever reasonable to expect that a phone call to Kanye West that he puts on speaker likely or possibly in the vicinity of his reality star wife… would indeed be a confidential conversation? That’s where her case might be weak,” Varona said. “What would Kanye’s lawyer tell him? It would be the same analysis: There might be some liability, but that the strongest defense is the reasonable expectation.”
A separate legal issue is that Swift “is saying she was not told anything” about the “that bitch” lyric. Meanwhile, Kim and Kanye “are saying she approved the lyric expressly. There might even be a defamation issue here: Kim and Kanye are asserting that Taylor Swift agreed to be demeaned in that way when Taylor herself is insisting that she never assented to the ‘bitch’ lyric.”
To clarify, the case wouldn’t hinge on the lyric itself but on the Kardashian-Wests telling the public that Swift had agreed to be called a bitch in the song. “I think that having Taylor Swift, a celebrity who has cultivated a very innocent, family-friendly image, saying that she assented expressly to being demeaned in that lyric with the bitch term in that very demeaning way, itself may be reputationally damaging to the extent that she might have a case under defamation laws.”
The whole blow-up, he said, “makes for the perfect media law case study.”
To backtrack just a bit, Kanye West released his album, The Life of Pablo, in February. On this long-awaited opus was “Famous,” with its Swift-name-checking verse; West assured his fans on Twitter that Swift had given him the green-light to include her in the rap.
In a series of tweets, West wrote “I called Taylor and had a hour long convo with her about the line and she thought it was funny and gave her blessings.” He also pointed out that “bitch is an endearing term in hip hop” and went so far as to say the line originated with its subject: “I’m not even gone take credit for the idea… it’s actually something Taylor came up with… She was having dinner with one of our friends who’s name I will keep out of this and she told him. I can’t be mad at Kanye because he made me famous! #FACTS.”
Through her representative, Swift claimed 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.’” Then Swift attended the Grammy awards, phalanx of friends (or “friends,” depending on your take) in tow, and took home the night’s top prize: Album of the Year. During her acceptance speech, she doubled-down on her messaging, a neat trick of PR mastery that folded her alleged shock and disgust at West’s lyrics into her as-palatable-as-possible brand of feminism (a little less riot grrrl, a little more “women who say mean things about other women should go to hell”).
“As the first woman to win Album of the Year at the Grammys twice,” she said. “I want to say to all the young women out there: 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.”
That could have been the end of it, and it would have been a redux of the incident that started this… whatever this is. Calculated, combative performance art? But we are not in 2009 anymore. (In so, so many ways.) The narrative Swift was spinning at the time — doe-eyed blonde, white girl’s triumphant moment shattered by an outspoken black man, not that she ever would have phrased it that way — isn’t quite as catchy as it used to be. Kanye has an almighty ally: Kim. Kim, who documents everything.
That Swift was not more forthcoming in the first place — back when the song came out, she did not corroborate any part of West’s version of events — damages her credibility. Her Instagram note, as noted by New York Magazine’s Select All blog, shows the “Search” back arrow in the top left corner, suggesting Swift could only find this open letter through search and not by, you know, just opening her phone and responding in real time to the video. You don’t, as a general rule, have to use search to access a note unless the note is from a while ago.
“It just goes to show how today’s media and telecommunications environment is so rich and so detailed that it sort of keeps us honest and it makes it very, very difficult for celebrities to do what they used to do, to twist reality,” Varona said. “It is sort of the clash between more traditional Hollywood and reality, true reality, that is documented in high def.”
TMZ is reporting that Kim and Kanye will not face criminal prosecution because Taylor knew she was on speakerphone and that multiple people were on the call. As she had no reasonable expectation of privacy, Taylor cannot claim Kim and Kanye violated the law.