Vogue publisher Condé Nast has filed a lawsuit against Drake and 21 Savage for trademark infringement over a fake Vogue cover the rappers used to promote their new album, Her Loss. The suit demands $4 million in damages or triple the profits from the album—whichever is higher—and legal experts say the magazine publisher has a good chance of winning the case.
Drake and 21 Savage shared images of the Vogue mockup, which featured both rappers on the cover, as part of a promotional campaign that also included a fake NPR Tiny Desk concert, a phony interview with Howard Stern, and a pretend appearance on Saturday Night Live. NPR responded by clarifying that the performance was fake but said “we’re open to the possibility” of hosting Drake at the real Tiny Desk. Vogue took a decidedly different tack, filing a 30-page lawsuit accusing the rappers of violating the media company’s trademark rights by creating a “counterfeit version of perhaps one of the most carefully curated covers in all of the publication business.”
“All of this is false. And none of it has been authorized by Condé Nast,” Condé Nast said in the lawsuit.
The phony issues of Vogue were shared on social media in a now-deleted post and distributed for free in some of “North America’s largest metropolitan areas.” Copies are now listed online for upwards of $150. According to the lawsuit, Drake and 21 Savage also falsely thanked Vogue editor-in-chief Anna Wintour for the “love and support on this historical moment.”
Barton Beebe, a law professor at New York University, called the lawsuit “an easy case for [Vogue] to win.” He went on to say, “I think that they’ll get the injunction, the injunctive relief, ordering the marketing campaign to stop. It seems to me an interesting question would be if Vogue wants to pursue this all the way to damages, because they could be in the millions for this kind of conduct.”
He added that since Vogue was just one of the media companies parodied by the rappers, others could come forward with similar lawsuits. “They’re just trying to sell something, and they’re making up fake news to do it. And so it would be understandable if the other targets of this media campaign also brought suit.”
As for their defense, the artists could argue that the stunt was obviously parody. Though trademark law “does not have a specific parody defense,” according to UCLA law professor Mark P. McKenna, who specializes in intellectual property and privacy law, “The basic idea of trademark infringement is that the plaintiff has to show likelihood of confusion. And so, what you see some courts sometimes say is, if the parody is clear, then there’s not going to be any confusion because people will understand that it’s a parody.”
In any case, the media attention surrounding the lawsuit has done more to promote Her Loss than the promotional campaign itself, and McKenna said that might be by design. “That’s part of the stunt, right?” He said. “There was a sort of calculated risk being made here. I mean, even if the court orders them to stop doing this, like they’ve already done it, they’ve gotten the attention. I think that’s why Vogue is trying to seek money: to make it painful enough for people so that they won’t do it.”
Her Loss is now available on all streaming platforms. Listen to the album via Spotify in the player below.
Drake & 21 Savage – Her Loss