Details of the case
Rappers Drake and 21 Savage released their highly anticipated joint album, “Her Loss”, on all music streaming platforms on November 4th, 2022. The album debuted with 404,000 equivalent album units, as well as 513.56 million on-demand official streams of its 16 songs. As part of the promotional campaign for "Her Loss", each artist published social posts promoting their appearance in Vogue. Those posts featured purported copies of the magazine and captions calling out Vogue editor Anna Wintour by name to thank her and Vogue for their “love and support.” The main issue: Drake and 21 Savage were not actually featured in November’s Vogue issue, and neither Condé Nast, publisher of Vogue, nor Anna Wintour had consented to the use of the brand or Ms Wintour’s persona in association with the album.
As a part of the marketing campaign for "Her Loss", the artists released a number of fake media coverages on their social media channels. Fake clips of the duo on “The Howard Stern Show” and NPR’s “Tiny Desk” were circulating online, as well as fake performance on NBC’s Saturday Night Live and a fake interview on Howard Stern’s SiriusXM Radio Show, promoted by the artists themselves. The unconventional marketing choice was interpreted as a commentary on the state of the industry, as it is now commonplace for most artists to make public press appearances following album releases. Amidst all of that, fake Vogue cover has proved to be the largest issue, as Condé Nast and Vogue’s parent company, Advance Magazine Publishers Inc., formally filed a lawsuit against Drake and 21 Savage, alleging that the rappers have infringed on Vouge’s trademark.
According to the complaint from Condé Nast, the rappers' campaign caused "confusion" among the public and in the media, with "numerous media outlets" publishing articles about the supposed cover. In the complaint, the publisher states that Vogue is seeking at least $4m in damages, or triple the defendants' profits from their album and "counterfeit" magazine, as well as coverage of any fees and costs associated with the lawsuit. On November 9th, a federal judge overseeing the case issued a temporary restraining order, affirming that the campaign led to significant consumer confusion, which caused the publisher irreparable damage. Following the order, Drake, 21 Savage can no longer use, display, or distribute copies or images of the counterfeit magazine, counterfeit cover, or images of Wintour and use the Vogue trademark or any trademark that is confusingly similar to it for commercial purposes, including advertisement and promotion of the album.
Lawsuits similar to this one are not new in the entertainment industry. In fact, there are several celebrities who have found themselves entangled in corporate lawsuits and cases of copyright and trademark infringement.
Lil Nas X “Satan Shoe”
In March 2021, rapper Lil Nas X, in collaboration with an art and advertising company MSCHF, launched 666 pairs of Air Max 97 shoes, featuring an upside-down cross, a pentagram, and an injection of human blood into the sole to create the “Satan Shoe”. The product was designed to closely resemble Nike’s shoes, to the point of incorporating Nike’s trademark "swoosh logo". Concerned with the public perception of their product being associated with satanic symbolism, Nike quickly acted upon unauthorized use of their trademark and filed a lawsuit. The case was settled after MSCHF announced that they would voluntarily recall all of the sold pairs of shoes.
Taylor Swift “Lucky 13”
In 2014, the US clothing company Blue Sphere, also known as Lucky 13, filed a lawsuit against Taylor Swift, accusing her of infringing on its “Lucky 13” trademark after she branded and marketed her own products with the phrase. Swift used the trademarked phrase and the company’s iconic shamrock on t-shirts she produced and sold, in addition to greeting cards she partnered with American Greetings Corp. to create and market. Blue Sphere alleged that the singer’s use of “Lucky 13”, among other things, caused a likelihood of consumer confusion and tarnished the quality and goodwill of its products. After 18 months, the clothing brand and singer reached a settlement agreement. As of right now, Taylor Swift holds a rather impressive portfolio of trademarks with over 350 trademark applications.
As these cases show, most of the time, lawsuits against public figures end up with a settlement agreed upon between both parties, which means Drake and 21 Savage are most likely not gonna suffer significant damage from this lawsuit either. In fact, one can argue that this case brought the artists additional attention, fulfilling the initial purpose of their extreme marketing strategy. Nevertheless, this case raises multiple questions about the influence of social media and false advertisement and their negative consequences on brand perception.
Registering a trademark is an essential step towards the protection of intellectual property, but only continuous monitoring can ensure that your brand is fully protected from infringement. In order for a trademark to take its full effect, it’s important for a business to continuously enforce its rights against unauthorized use of its brand assets.
