Trump v. Miller: Would Donald have a case?

Written by Scott Mervis on .

mac-miller-at-stage-ae 420Where were you on the afternoon of Jan. 31?
If you were on Twitter, you might have noticed that Donald Trump went on a belated serial tweet frenzy against Mac Miller over the 2011 single “Donald Trump.”
The real estate mogul had formerly been a fan of the hometown rapper’s YouTube smash (now at 75 million hits), posting a video that said “...the ‘Donald Trump’ song just hit over 20 million, that’s not so bad. I’m very proud of him” and tweeting that Miller was “the next Eminem.”
His opinion flipped last week, most likely over an interview Miller did with Complex Magazine wherein he was critical of Trump’s political posturing during the campaign and referred to Trump as a certain feminine hygiene product.
Trump, who sued Bill Maher this week for comparing him to an orangutan, threatened a lawsuit against Miller, but hasn’t uttered a word since.
The question is, would he even remotely have a case?
Michael J. Madison, a law professor at the University of Pittsburgh, says there are some interesting precedents.
“The general rule comes from a federal case called Rogers v Grimaldi, which was brought by Ginger Rogers against the producers of a movie titled ‘Ginger and Fred.’ The rule, in its short form, is that using the name of a public figure in the name of an artistic work is OK if the name is artistically relevant to the work. (The legal interest is the figure’s ‘right of publicity’). 
“Most courts have been pretty generous with that standard (Ginger Rogers lost; the movie was about a fan’s obsession with their movies). But not all courts are so accommodating, and rap artists in particular sometimes suffer, because courts struggle to find the art in that form.”
He points to the case in which Rosa Parks sued “OutKast” over the song “Rosa Parks,” arguing that it had nothing to do with her or the Civil Rights movement. 
It ended with “an undisclosed cash settlement” and OutKast agreeing to work with the Rosa and Raymond Parks Institute for Self Development in educational programs.
Madison says that result “misses the point of the metaphor in that piece. My guess is that Mac Miller’s of Donald Trump is likewise metaphorical. Does that mean that Mac would lose? I can’t say. But the legal question is not merely whether Trump was defamed.”
Andy Cornelius, a Pittsburgh-based lawyer who deals with copyright and entertainment issues, said, that “the right of publicity is balanced against First Amendment rights (such as news and expression through entertainment). I wouldn’t go so far as to say that all entertainment prevails over the right of publicity, but in this case it probably does. So, I’d say Trump’s right of publicity is trumped here, ironic though that may be.”

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