Nike Can Likely Sue Kanye West Over New Song

Kanye West released a new song called “Facts” this past week, slamming Nike, the sportswear giant, where his Yeezy sneakers got their start, before he jumped ship to adidas. The release of the song had every menswear site buzzing but one thing that has not been given any attention is the fact that the rapper includes a number of lines in his song that may give Nike standing to file suit. It seems clear – from the song and any number of West’s other rants – that he has a personal vendetta of sorts against the Portland, Oregon-based company (which according to insider reports gave him the boot in 2013), and we also know that Nike loves a good lawsuit. So, do we have a defamation lawsuit in the works?

Well, here are the legal facts. Defamation refers to the act of injuring another party's reputation. It is basically a catch-all term for any untrue statement that hurts a party’s reputation, and embodies the two different civil wrongs of slander and libel. While slander refers to an oral or spoken statement, song lyrics are actually governed by the doctrine of libel, which covers written statements. Put very simply: in order to establish a claim of slander or libel, a plaintiff (the party who is alleging that his reputation has been injured) generally must show that the defendant made (1) a false statement of fact (not merely a statement of opinion); (2) to a third party (aka the defendant “published” the statement, in legal terms); (3) the statement was false; and (4) the statement actually injured the plaintiff. (I am going to spare you the per se and damages examinations).

Up until the release of “Facts,” it seemed as though Nike likely brushed off West’s claims about it as the unactionable byproducts of a crazed rapper. You may recall that when West took the stage in a Nashville 2013 concert, he shared the following with the crowd: "Do you know who the head of Nike is? His name is Mark Parker, and he just lost culture. Everyone at Nike, everyone at Nike, Mark Parker just let go of culture." That’s not an actionable statement because its West’s opinion. He thinks he is one of the greatest sources of culture in the world, and so, by letting him go, Nike lost out. Clearly, this amounts to a statement of opinion.

In February 2015, West performed at Big Sean’s Yahoo! Live Concert, telling the crowd: “I just want to talk to Portland right quick. Everybody at the Nike office right quick. I ain’t going to talk too long, but I got to say something. Cause I know the execs are saying ‘Nike ain’t scared of Kanye West.’ Should Nike be scared of Kanye West?” As Rolling Stone noted, “When the opening notes of his song ‘New Slaves’ played, West added, ‘Y'all should thank Nike because they made me make these songs right here.’” Again, this would likely be construed as a non-actionable statement because it is opinion-based and likely didn’t cause Nike any damage.

Finally, in what may be the closest example to what may be actionable grounds for defamation, in January 2015, West appeared on Ellen DeGeneres’ television show, and spoke about his experience at Nike, in comparison to his current gig at adidas. As Quartz noted in an article, West told DeGeneres that he felt “suffocated” while working with Nike. He went on to state: “A lot of times people try to block your creativity, control you with money,” seemingly also referring to Nike. This seems to somewhat closely mirror the claims that Nicolas Ghesquière made in an interview regarding Balenciaga on the heels of his decision to step down, which subsequently resulted in a lawsuit. These instances are different, however, as Balenciaga sued Ghesquière for breaching a separation agreement (in which Ghesquière agreed to refrain from making statements that would harm the house) and not defamation, in particular. It is worth noting, though, that even absent such an agreement, Balenciaga likely would have been able to sue for defamation based on these statements if it could show that such statements damaged the brand by way of the economic interests tied to its reputation.

This brings us to West’s new song. In the midst of lines about how great his sneaker designs are and how he is planning to run for president, the rapper states: “Nike treat employees just like slaves” and Nike "can't give shit away.” These lines, as distinct from some of his other loose cannon-esque concert rants, are actually problematic.

Given West’s relationship with Nike (and thus, his implied knowledge of at least some insider information), these statements could likely be construed as fact, which Nike would certainly argue are false. That’s two factors of the general defamation test. The statements were “published” to a third party (or better yet, many, many, many third parties) because the song was made public online. That’s another factor. Lastly, Nike could probably argue that it is being damaged by the statements, which might not be hard considering that West is accusing the company of slave labor and asserting that it is not faring well financially (which we know, based on the company’s recent financial reports, simply is not true). In short: it seems Nike has a case for libel.

However, West has a potential saving grace, in case Nike does choose to pursue legal action (which it probably will not because it’s the largest sportswear company in the world and frankly, has bigger concerns), and it comes in the form of the First Amendment. In 1964, the Supreme Court ruled in the landmark case of New York Times v. Sullivan, holding that certain defamatory statements are protected by the First Amendment. The court ultimately held that public officials can sue for statements made about them only if the statements were made with "actual malice,” which means that the person who made the statement had “knowledge that [the statement] was false or [made it with] reckless disregard of whether it was false or not.” Three years later, the Supreme Court extended the “actual malice” standard to public figures (such as celebrities, like West) in Curtis Publishing Co. v. Butts.  

With this in mind, Nike is a public corporation, and thus, one that is of public interest. As such, its hypothetical case against West becomes more complicated. Due to its status as a public figure (or a corporate plaintiff, as the legal literature calls it), Nike would be required to prove that West’s lyrics are, in fact, false. It must also show that the actual malice standard is established (aka that West either knew that Nike does not treat its employees like slaves and is not suffering financially) or made such statements without reasonably knowing that they were true.

The good news for Nike is that case law indicates that a corporation may recover damages for injury to its reputation without proof of specific losses. That said, potential corporate defamation plaintiffs should be cautioned that, absent proof of specific business loss, damages will likely be modest. But if we consider Nike, with its annual revenues of $30.6 billion (and projected profits of $50 billion by 2020), the company wouldn’t necessarily pursue legal action solely for the purpose monetary gains. Instead, Nike would want injunctive relief (aka it would be seeking a court order that West either cease sales of the song or edit it or the like). It is certainly worth noting that equitable remedies were long deemed inappropriate for defamation plaintiffs due to First Amendment concerns. However, this has changed rather significantly and a more permissive approach towards injunctions in defamation cases has arisen.

As such, Nike very well could sue the adidas trainers off of Kanye West if it really wanted to.