Free Publicity, With Drake And 21 Savage


intellectual property law

(Image via Getty)

Every so often, there is an IP story that captures the imagination of the broader zeitgeist. Usually, there is an entertainer or famous athlete involved, such as when Kawhi Leonard took on his former sponsor Nike over the rights to his “claw” logo. This week, a very interesting IP situation developed involving two famous music artists, Drake and 21 Savage. The situation is a fast-moving one, with a temporary restraining order entered against the artists on November 9 by the SDNY’s Judge Jed Rakoff. In his order, Rakoff also set a November 22 hearing on whether a preliminary injunction should be issued as well. Concurrent with his upcoming treatment of the preliminary injunction, the judge also required the plaintiff to post a bond of $10,000 by November 14. As you can guess, the case at issue is not a patent dispute, but involves forms of IP where restraining orders and preliminary injunctions are realistic relief for IP owners to pursue.

What sparked this flurry of legal activity involving two of the music scene’s most prominent contemporary artists? Everything revolved around a curious public relations strategy employed by the musicians to hype up the release of their top-selling new album, “Her Loss.” As noted by the Hollywood Reporter, the duo employed “several spoofs that circulated leading up to the album release” including “bogus appearances on NPR’s “Tiny Desk” series and “The Howard Stern Show.” What got them in IP trouble, however, was their decision to also spoof Vogue magazine by creating “a complete reproduction of the October issue with some adaptions, including a Photoshopped image of Drake with a young Vogue editor-in-chief Anna Wintour.” That was followed by the distribution of free copies of the “promotional” issue of Vogue in a number of high-traffic locations, with Drake also sharing a post with his 124 million (yes, a crazy number of people) Instagram followers that thanked “@voguemagazine and Anna Wintour for the love and support on this historic moment.” What might have all started in good fun turned very serious very quickly, however, with Vogue publisher Conde Nast filing a host of trademark and unfair competition claims against the two artists and their public relations firm in the SDNY within a week of the fake Vogue’s hitting the streets and social media.

The SDNY complaint is an interesting read, with perhaps the funniest bit of evidence provided as proof of confusion caused by the fake Vogue magazine being the updated Wikipedia entry for Vogue U.S. cover models, updated to show Drake and 21 Savage as the newest entrants. Other proof of alleged confusion submitted including a picture submitted on Twitter by a fan lucky enough to get a few hard copies of the “promotional” Vogue issue, as well as various and sundry music industry outlets hyping up the release of the new album — while also mentioning that the artists were also newly minted Vogue cover models. In terms of generating publicity for the album launch, it is hard to argue that the Vogue vamping strategy was anything other than a resounding success. Even at the cost of a lawsuit, which arguably only brought more attention to the stunt, again to the benefit of the artists in terms of more attention on their album release.

Still, the attention was a bit short-lived, at least in terms of the artists having the ability to continue milking their promotional efforts without legal recourse. In fact, it was only two days from when the complaint was filed when Rakoff announced the entry of the temporary restraining order, along with the other follow-on proceedings that were ordered as discussed above. In his decision, the judge enjoined the artists from further “using, displaying, dissenting or distributing” the fake Vogue cover and the counterfeit magazines they printed for the promotional campaign” while also prohibiting them from “referencing Anna Wintour, Vogue’s Editor-in-Chief, for commercial purposes.” In short, all that is left is the legal reckoning as a consequence of the now-terminated publicity stunt.

Ultimately, situations like this are a potent reminder of the role publicity-generation can play in IP disputes. While perhaps not as powerful a driver of adversarial decision-making as emotion is, the value of garnering publicity can be a key contributor to the presence of litigation as a means for resolving IP disputes. Here, there is no doubt that the artists have benefited — at least from a publicity perspective — from the escalation engendered by Conde Nast in pursuing IP claims against them. At the same time, this situation has perhaps had some benefit for Conde Nast too, in terms of demonstrating the value of their Vogue franchise, as well as their willingness to aggressively police their IP rights. As with most IP disputes, the likeliest resolution here is a settlement of some sort. But if this case bucks the odds and goes all the way, I suspect Drake and 21 Savage will be forced to confront the cost of free publicity.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.





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