If you’ve ever listened to a really detailed break-up song, you’ve probably wondered how the singer can say all this publicly without getting sued.
Music has become a major tool artists use to cope with a breakup, but can they be liable for defamation for writing a scathing song about their ex?
It turns out stars like Lily Allen, Taylor Swift, The Weeknd, Olivia Rodrigo, Ed Sheeran, and Katy Perry have a very clever legal defence to avoid getting into trouble for publicly putting their exes on blast.
Jahan Kalantar, criminal defence attorney and author of Talk Your Way Out of Trouble, told Nine.com.au the secret to not being sued by your ex when writing a breakup song.
“They basically get away with something called artistic license; it’s just the ambiguity that is inherent in a work of art,” he says.
“They will rarely describe someone so specifically that they could be identified by the public … if you can’t reasonably tell who the song is about, it’s not defamatory.”
Kalantar says things start getting interesting in the example of Lily Allen’s recent album West End Girl, which is “clearly” about her ex-husband David Harbour, although she hasn’t specifically said this.
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Even then, she’s protected by a few things, including the right to free speech in the US, and artistic license, as well as the truth or opinion defence.
”Artistic license is the right of an artist to express an idea or a thought uniquely,” he explained.
“If Taylor Swift goes and talks about a handsome guy who broke her heart, she could be talking about anyone, unless she specifically names and shames.”
Allen and other artists also have something called the “Streisand effect” on their side.
“Generally speaking, people want to avoid the Streisand effect,” Kalantar said.
”It’s this weird thing that happens that if you bring attention to a piece of art satirising it, it will make it more prominent.
“People know that the worst thing that you can do is file a lawsuit because if you do, just like in the Kendrick Lamar and Drake lawsuit, it just brings so much more attention to it.
“The smart thing to do is just let the news cycle roll.”
The term emerged after singer and actress Barbra Streisand sued a photographer to remove a picture he had taken of her home from the internet in 2003.
It was a wide shot taken from a helicopter of a coastline with her home in frame, and was one of 12,000 photos.
Before the lawsuit, the picture was only downloaded six times, including twice by Streisand’s lawyer.
After the lawsuit was filed, the picture had been downloaded more than 400,000 times.
Kalatar also said in the US, artists have almost free rein over what they say in their songs because of the right to free speech and opinion.
“If a lyric expresses an opinion rather than a statement of fact, saying, ‘You broke my heart, you hurt me,’ that’s very different from saying, ‘You cheat on your taxes,'” he said.
“Stars like Lily Allen and Taylor Swift have legal teams that vet everything. They do run an analysis and make a decision, so nothing is done without it passing through some type of lawyer.”
Every breakup song that is not-so-secretly about a celebrity
Kendrick Lamar’s Not Like Us led to a defamation lawsuit by Drake, but a judge dismissed the case as the lyrics of the song “Say Drake/I hear you like em young” constituted a non-actionable opinion, rather than a statement of fact.
Another major factor is that an artist can’t be sued for defamation if the person is not identifiable in the song, meaning they are not named or pictured in a music video.
With Australian defamation laws, it’s similar.
You can beat a defamation accusation with a truth defence, an artist’s license and an opinion defence.
Of course, you have to be very brave to take that chance.
“There’s always risk with defamation, it’s a dangerous game … I don’t know why people aren’t more conscious before they take that chance!” Kalatar says.
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