image: Glamour

image: Glamour

Once again, the media has been set on fire by the Kardashian/Jenners, but this time for the production and sale of highly offensive “vintage” tees. Last week, the pair released a collection of band tees where either Kendall, Kylie, or the initials of the brand “KK” was screen-printed atop the album covers and photos of artists, including Tupac, Biggie Smalls, The Doors, Led Zeppelin, Metallica, and others.  

Shortly after their release, the families (and in the case of The Doors, the manager) of those featured on the tees, as well as their millions of fans, began speaking out against the tees, describing the stunt to be distasteful and insulting. Within 24 hours, an array of cease and desist letters were issued to the Kendall + Kylie brand, and the tees were pulled from production. Further, in hopes of minimizing the potential damage the stunt caused, the pair issued a statement via Twitter apologizing for offending the fans and families of the artists.

Even though the tees have been recalled, at least allegedly, the parties at issue very well may still have legal causes of action, namely by way of copyright infringement and/or right of publicity violations, something that has not been discussed in the media field day created by the tees.

The legal breakdown is this: In order for such tees to have been legally manufactured and sold, the Jenners’ camp would have had to receive authorization from the copyright holders of the photos and artwork that served as backgrounds for the tees. Further, they would have to meet the right of publicity standard, presumably in California, where the Kendall + Kylie brand is headquartered.

The copyright claim is rather straightforward. In order to legally use the photos of Notorious BIG and Tupac, Metallica’s Kill ‘Em All album cover, and Pink Floyd’s Division Bell album cover, etc., the Jenners would have had to license such photos and artwork from the copyright holders.

(If faced with a copyright infringement suit, the Jenners’ legal team may try to argue that their addition of “KK” graphics and their photos to the tees has “transformed” the copyright infringement use, therefore, creating a “fair use” situation but that seems unlikely to be persuasive. If anything, the tees are likely derivative works – at best).

Even if the sisters did, in fact, receive permission to use the images and album artwork at issue – which it seems they did not – there is an extra hurdle that they would have to clear for at least some of the tees. For the shirts bearing the images of individuals, such as Notorious BIG and Tupac, the reality television sisters would be faced with Right of Publicity law considerations.

As noted by the Digital Media Law Project, “Generally speaking, the Right of Publicity in California protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes.” With this in mind, California state law protects a person’s name, voice, signature, photograph, and likeness “on or in products, merchandise, or goods, or for purposes of … selling … products, merchandise, goods or services, without such person’s prior consent.”

An obvious issue should come to mind right about now: What about the fact that both Biggie and Tupac are dead? Does this law still apply to them? The answer is yes because California has a specific statute that protects posthumous rights of publicity. The right lasts for 70 years after death, and is considered a freely transferable, licensable, descendible property right – meaning that it can transfer and be managed by the dead celeb’s family or estate.

(Note: Tupac died in 1996 and Notorious BIG a year later. So, easily within the 70-year timeline for protection). 

According to the California statute, a few elements/formalities must be met before a party can claim Right of Publicity for a deceased individual. Put simply, a plaintiff (the estates/families of Biggie and Tupac, in our hypothetical case) is required to show that the defendant(s) (Kendall + Kylie) used the famous individual’s identity – for the defendant’s advantage; that the plaintiff did not consent to such use; and the plaintiff was harmed by the use.

Additionally, in California, where there are both statutory and common-law protections for the right of publicity, the plaintiff must also show that the defendant(s) knowingly used the plaintiff’s name (or photograph or likeness) for commercial purposes and that there is a direct connection between the use and a commercial purpose.

It seems like a pretty straightforward case for the families of these wildly iconic rappers, as the hypothetical defendants (Kendall + Kylie) used the rappers’ images for their own advantage (think: selling t-shirts to make money) and without their families’ consent, as judging by the backlash from Biggie and Tupac’s families, they did not grant the Jenners the right to use their names.

As for the California-specific elements, it would likely be very difficult for the Jenners to show that they did not respectively make and stock the t-shirt at issue without knowingly using the rappers’ images for a commercial purpose (and without consent) and that such usage was not for the purpose of profiting on the widespread awareness and appeal of Biggie and Tupac.

In short: While there are some defenses that the sisters’ legal team could raise, such as fair use, they seem unlikely to be successful. As for whether Biggie and Tupac’s families will file suit, we will have to wait and see.