See the bottom of this piece for news updates.
Sunday night, we were given a gift: Via Snapchat, Kimberly Noel Kardashian West revealed the much-discussed conversation between her husband and Taylor Swift, in which Swift allegedly consented to West’s lyrics referring to her in his song “Famous.” The aftermath this song hath wrought is far more controversial than its video.
Kardashian West’s Snapchat was followed by an Instagram response from Swift, in which she posted a Notes note (!) accusing West of never calling her to discuss the exact phrases in the song. (As a sidenote, it is meaningful that Taylor Swift used Instagram and Kim K used Snapchat to carry out this debate. Point, Kim.)
Mr. and Mrs. West are controlling the narrative of this saga — that much is obvious. But there is a gray area when we consider the legalities of the Snap. We don’t know the details of the video — according to Kardashian West’s recent GQ interview, her husband has been working on a documentary that includes tapings of his studio sessions and phone calls. One of those phones calls was made to Taylor Swift, who — if the video in the Snap from last evening is true — confirmed she was comfortable with West’s lyrics. What follows now is a lot of guessing about where the various celebrities involved in this perfect drama were located and whether or not there are legal issues at play. Guessing is fun so please get out of here with your “actually.”
There are two ways this could have gone down (ha ha, not really — there are a million ways but we can narrow it down to two):
West and Swift Were Both in California at the Time of the Call
Let’s assume Kanye West recorded this particular conversation in his studio at his home in Calabasas, California. As it is impossible to say where Kanye was when he placed this phone call, it is also impossible to determine where Swift was when she received it. But! We do know she had recently finished her world tour and appeared to be spending a lot of time at her L.A. home with her cats/various beautiful friends. Following this logic, let’s assume both West and Swift were in California. (I know, I know, there’s reference to a Nashville area code in the Snap — I don’t get it either but I promise we’ll consider it shortly.)
If that were the case, then unless Swift was told someone was recording the conversation, California’s two-party consent law was violated — and her Instagram caption alleges she was not told and the call was secretly recorded. (Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington are also two-party consent states.) Hopefully there is a preface to this video, wherein someone asks Swift if the call can be recorded and she acknowledges as much and she either forgot about this or is choosing to ignore it. But even if the agreement happened but wasn’t on tape, she could cry foul and argue that no one ever told her about the recording and Kanye West and Co. would be in a fair bit of trouble. If she did consent, despite her Instagram caption saying otherwise, then all is well and we may all continue to revel in this saga.
West and Swift Were Not Both in California
But what if she wasn’t there? Perhaps she was in Nashville, where she owns a home. According to the Digital Media Law Project, a database created by the Berkman Klein Center for Internet and Society, things get complicated when you’re dealing with different states. The DMLP’s advice? Just err on the conservative side: “If you record a phone call with participants in more than one state, it is best to play it safe and get the consent of all parties.” There’s some debate over state versus federal rights here — federal law dictates that only one person needs to give consent if not in a two-party state — so if that were the situation in this case, then West’s consent counts as one party and we are all good to continue on our merry way. Did this happen? We do not know, but the video does not make it clear, and Swift says it didn’t.
And now, our first non-location-related hypothetical:
Did Taylor Swift Know the Conversation Was Being Recorded By Someone Who Was Not Kanye West?
It appears there is someone holding a camera recording everything, which makes things even murkier. Again, according to the Digital Media Law Project, “It is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear.” This is even more confusing now: Did Swift know someone else was listening to and recording the conversation, or did she think it was just West when he asked for her consent to record (assuming he did ask)?
Between trying to figure out when and where this phone call was made and who knew about it and who knew who was listening to it, I have grown weary. Are you weary? It’s all very wearying. There is little to no chance that Kanye West, Kim Kardashian West, Taylor Swift, and whoever was filming this conversation are going to publicly offer up all of these details and thus we can make no further assumptions about the legal standing of this chat. However, twist! What about the fact that Kardashian West posted the video of the phone call to Snapchat?
It’s possible that when the phone call was recorded, there was a conversation that went like this:
Kanye West or a camera person or someone else (referred to from here on out as “West and Co.”): Hi, Taylor.
Taylor Swift: Hi, [West and Co.].
West and Co.: Before we get started, I wanted to let you know we are recording this phone call — cool?
Taylor Swift: Yes! It is!
Great, everyone is on the same page, and complaints cannot be issued. But … it is highly unlikely that any part of this discussion included Swift conceding to Kardashian West that the conversation is cleared to be posted to her Snapchat. Technically, Kim would be considered a third party to this conversation, and her legal standing to publish it is murky at best.
Many people conducting business record phone calls, but often those are off the record or (to use a phrase reporters really hate) “on background.” If this were the agreement over the call, then posting it publicly to Snapchat becomes legally complicated, especially because the person who published it was not a part of the conversation. The only thing that could clear all of this up is if the documentary story line is legitimate — then Swift would have known it would eventually be public and not just recorded for personal use. Why she would OK this, I would never understand.
In any case, the legal status of this recording and publishing are confusing and inconclusive. The status of the receipts, though? Issued in full.
Update [June 18]: According to TMZ, Swift threatened to sue West for illegally recording their phone call and not making her aware it was being taped. That would, of course, mean West broke the law, but doesn’t change the fact that Taylor flip-flopped on the lyrics.
Update [July 19]: While it looked liked the Wests may have been in the wrong when news broke that Swift was considering filing a police report, a new TMZ story says that Swift knew that the phone call was not private. According to this report, Swift knew she was on speakerphone and heard producer Rick Rubin and the filming crew speak during the call, thus she had no expectation of privacy. Oops!