Kanye West and the Consequences of his DEI Issues

Media Law & Ethics

December 1, 2022
Caroline Powers and Grace Wharton
 Kanye West has been under public scrutiny lately for several controversial and offensive
comments and actions, many of which have landed him in significant legal trouble. While he has
made many anti-Semitic comments over the years, his recent comments on the Jewish
community have caused him to lose multiple million-dollar brand deals, the most significant
being his long-standing deal with Adidas in producing his Yeezy brand (Eddy, 2022). He has also
made several comments supporting President Trump and extreme right-wing ideologies in recent
years, the most current example being pictured wearing a White Lives Matter shirt to a Paris
Fashion Week show. He is currently being sued for defamation by George Floyd’s family, which
brings into question Kanye’s First Amendment rights and the possible emotional distress
inflicted upon the family by his words (Adams, 2022). Kanye’s status as a highly recognizable
celebrity greatly affects how the public addresses his offensive actions. In the past, they have
been ignored for the most part, so it is worth examining why companies and public figures are
now taking legal action to counteract Kanye West.
Recently, Kanye West appeared on the podcast Drink Champs and went on record saying
that he believed that George Floyd died from fentanyl use rather than homicide by police officer
Derek Chauvin. Floyd’s family filed a $250 million lawsuit against Kanye, suing specifically for
“harassment, misappropriation, defamation, and infliction of emotional distress…” and claiming
that “Free Speech Rights do not include harassment, lies, misrepresentation, and the
misappropriation of George Floyd’s legacy” (Adams, 2022). West’s First Amendment rights can
potentially protect him in this case. Libel, defamation, and slander claims cannot extend to
individuals who are no longer living, so Floyd’s family cannot have a successful suit for
defamation on George Floyd’s name. However, suppose the plaintiff can prove emotional
distress. In that case, they could build a case in this scenario. Part of the Floyd family’s claim is
that George Floyd’s daughter, Gianna, is being “retraumatized” by Kanye West’s comments and
actions surrounding her father’s death. Gianna and her family would have to prove that the
statement was intentionally harmful and could be connected to her mental well-being to follow
through with this claim. Because Kanye West is considered a media defendant, this makes the
Floyd family’s claim significantly harder to prove but not impossible. Earlier this year, the
families of the Sandy Hook school shooting victims successfully sued Alex Jones for almost $1
billion, claiming that the families were hired as “crisis actors” to send a message from the
government about gun laws (Hassan, 2022). Defamation that damages reputations to the extent
that Alex Jones did is an extreme example. However, this could also apply to the Floyd family
case, as they attempt to defend their reputation and the message they advocate for about ending
police brutality in the wake of George Floyd’s death. Another question that could alter the
outcome of this case is whether or not the Floyd family should be considered public or private
figures. If they were to be considered public figures, they would be limited-purpose public
figures because they attained their public status through a “specific field” and in connection to a
specific controversy (“Defamation”). If this were to be the case, they would need to prove actual
malice only for defamatory statements concerning matters that qualify them as public figures.
However, their case could be easier to argue if the court views them as private figures. They
would only need to prove that the defendant acted negligently in their defamatory statement, but
that may not be the case in this specific lawsuit.
This current lawsuit is only one of many public issues Kanye is experiencing. It has been
noted that for years, he has been making offensive comments against many different
communities. Only now are the companies that work with him and represent him taking action
against that. Through a lens of diversity, equity, and inclusion, one of the more significant issues
at hand is the surprising amount of support from people who have been excusing Kanye’s
actions. Kanye has repeatedly referenced Hitler and Nazis in song lyrics since the early days of
his career. He has continued to spread harmful stereotypes about Jewish people for much longer
than people seem to be willing to admit. It has been found through an extensive review of
Kanye’s history that he has been making antisemitic comments as early as 2005. “In November
2007, in his “Flashing Lights,” he says, ‘Til I got flashed by the paparazzi, Damn, these n—-s
got me, I hate these n—-s more than a Nazi,” the lyrics state.” (Gazzar, 2022). This comment
minimizes the atrocities of Nazism by comparing Kanye’s daily “struggles” with the paparazzi to
real-life atrocities. This is only one of many song lyrics or comments he has made publicly that
have gone unnoticed by many of his fans for several years. He is beyond antisemitic comments;
Kanye has openly talked about different ethnic and religious groups as well. The issue is that
Kanye has received considerable leeway from numerous journalists, media outlets, and business
executives.
These groups have defended Kanye for different reasons. Some see Kanye as an
incredible musician and artist and can’t abandon their feelings towards him as an artist. Some
groups will mention the mental illnesses that cause him to act this way. And despite there being a
vast contradiction with DEI, some brands tried to defend Kanye for as long as possible due to the
profits their partnership with Yeezy had been bringing in. Most recently, Adidas has been
spotlighted on its decision to continue or discontinue its partnership with Yeezy. Adidas, Kanye
West’s most significant business partner, remained silent about its association with the rapper and
fashion designer for over two weeks as he made several antisemitic comments and supported a
slogan used by white nationalists. Adidas released a statement saying, “Adidas does not tolerate
antisemitism and any other sort of hate speech. Ye’s recent comments and actions have been
unacceptable, hateful, and dangerous, violating the company’s values of diversity and inclusion,
mutual respect and fairness” (Eddy, 2022). Although Adidas was among the first of Yeezy’s
corporate partners to announce publicly that they had placed their relationship “under review,”
the company should have moved faster to sever their ties to Yeezy long before. Adidas should
have pulled its partnership with Yeezy immediately if it followed its company’s values. However,
Adidas and Yeezy’s relationship was heavily financially and logistically intertwined. For Adidas,
“the partnership was worth more than 10% of the more than $2 billion it made in profit last year”
(Eddy, 2022). Recently, the Anti-Defamation League published a press release putting pressure
on Adidas. The ADL called out Adidas relationship with Kanye by saying, “we are surprised and
concerned that Adidas – a brand that supports inclusion and diversity – continues not only to
support the Ye product line, but to release new products even as he continues to espouse hateful
antisemitic ideas to his 31 million Twitter followers, and as those noxious ideas spread across
social media and around the world thanks to his outsized media presence and celebrity status”
(Greenblatt, 2022). While Yeezy brings in vast amounts of revenue for Adidas, the ADL calls out
Kanye for his celebrity status and media presence, which only perpetuates his hurtful statement.
Companies and individuals have given Kanye a pass for his actions for far too long. His actions
have been excused due to him being a public figure and bringing in revenue, rather than looking
at the DEI issues of the remarks and immediately condemning him.
The outcome of Yeezy and Adidas will be something to follow throughout the next
couple of years because Adidas will continue to sell the sneaker and apparel line but without the
Yeezy name and branding. Kanye still owns the Yeezy trademark, but Adidas said in their
statement that they are the “sole owner of Yeezy line design rights to existing products that came
out of the partnership, as well as previous and new colorways arising from the collaboration”
(Meyersohn, 2022). Some apparel analysts feel it would be a mistake for Adidas to continue
selling Yeezy because it will always be synonymous with Kanye, which may decrease customer
demand. The legal argument here is difficult for both Adidas and Kanye. While Kanye owns the
trademark, it is common for the larger entity to claim ownership of the designs.
As we advance, Kanye will face many challenges with his brand. Since he owns the
Yeezy trademark, Adidas cannot use the branding anywhere on the products, but if they own the
designs, they can continue to make the apparel based on designs. That means Kanye will have to
sufficiently make new products different from his Adidas partnership to avoid being sued. Kanye
will have to be very careful since Adidas has already sent out a warning to him claiming
ownership of the designs. If Kanye wanted to regain ownership of the designs, it would be a
contractual law issue. It seems that when Adidas put their relationship “under review” before
cutting ties, they may have been reviewing the contracts with Yeezy. There is also an “Adidas
team that worked with Kanye, but it didn’t vaporize when the relationship ended. There are still
people at Adidas who worked on those designs” (DeStefano, 2022). This means that the Yeezy
team at Adidas could be kept intact to create similar apparel to Yeezy since they understand the
original aesthetic. One possible trademark argument would involve a trade dress claim by using
descriptive marks. Let’s assume Adidas decides to sell some of the items developed while
working with Kanye in the future. He certainly has a connection to the product. No matter what,
people will undoubtedly still link it to Kanye’s name. In this situation, Kanye may be able to
make a trade dress claim. Federal law also protects trade dress, “which describes a product’s total
look, including size, shape, color, texture, and graphics” (Ross, 2020). Kanye’s team could say,
“Adidas may be making contractual claims over the designs, but those designs will always be
associated with Yeezy and Kanye, with or without the Yeezy label.” If they make that claim, they
must prove that Yeezy is a descriptive mark. If they could prove this, it may allow a claim that
Yeezy owns the designs. The public is unaware of the contractual language that says Adidas
owns the designs, so it will be difficult for Yeezy’s team to win. Descriptive marks “may be a
trademark if it has acquired a distinctive connection to the product for which it is used. Courts
call this a secondary meaning beyond the word’s common meaning” (Ross, 2020). If Kanye
wanted a secondary meaning, “the public must associate a word with a product’s source or
producer, not the product” (ROSS). Courts have not agreed on a test for finding a secondary
meaning, but the Ninth Circuit Court of Appeals has an approach to deciding it. The court would
have to decide “(1) whether actual purchasers of the product bearing the claimed trademark
associate the trademark with the producer; (2) the degree and manner of advertising under the
claimed trademark; (3) the length and manner of use of the claimed trademark; and (4) whether
the use of the claimed trademark has been exclusive” (Ross, 2020). Kanye and his team will have
to prove all four points of this approach to regain control of his designs. It is possible, but it may
be an uphill battle.
In the future, Kanye will likely continue to face legal trouble from other companies. The
build-up of his actions for years has culminated in a DEI legal nightmare that will leave a mark
on Kanye’s name and ruin his public image almost permanently. In the next few years, the
outcome of his case with the Floyd family and his ownership issues with Adidas will indicate
factors of the state of free speech and trademark in the U.S. As his offensive remarks and actions
are only increasing at the moment, Kanye West will undoubtedly be an infamous name in the
media for the next few years.
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