Legal experts believe the publisher of Vogue magazine has a strong case in a trademark lawsuit that could cost rappers 21 Savage and Drake millions.
In the days leading up to the release of the duo's collab album, Her Loss, rappers 21 Savage and Drake shared photos of — and later distributed — copies of a fake Vogue featuring them on the cover. On Monday, Vogue publisher Condé Nast filed a 30-page lawsuit alleging that the creation of a "counterfeit version of perhaps one of the most carefully curated covers in all of the publication business" violated the media company's trademark rights.
Condé Nast is now seeking at least $4 million in damages, or triple any profits from the album and the fake Vogue issues.
"I think it's it's an easy case for them to win," said Barton Beebe, a law professor at New York University, who specializes in intellectual property law. "And 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."
With a lawsuit filed just days earlier, it's hard to pinpoint how the case might move forward. One option for Condé Nast, according to Beebe, could be filing a temporary restraining order, or a preliminary injunction, in the following days to stop further promotions of the fake Vogue. As of Wednesday afternoon, the original post on Drake's Instagram page is now gone.
And because the rappers promoted parody content with other media entities — such as pretending to take part in an NPR Tiny Desk concert and a performance on Saturday Night Live — others could come forward with similar lawsuits.
"They're just trying to sell something, and they're making up fake news to do it," Beebe said. "And so it would be understandable if the other targets of this media campaign also brought suit."
However, the rappers could argue that trademark law "does not have a specific parody defense," according to Mark P. McKenna, a law professor at UCLA who specializes in intellectual property and privacy law.
"The basic idea of trademark infringement is that the plaintiff has to show likelihood of confusion," McKenna said. "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."
But the attention generated from the lawsuit could be one way to give more attention to the album's release.
"That's part of the stunt, right?" McKenna 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."
This is not the first time a musician has recently faced a trademark infringement lawsuit while promoting a new release.
Nike sued brand MSCHF after it collaborated with rapper Lil Nas X on modifying Nike Air Max 97s into "Satan Shoes" that were sold at the same time that the rapper released his single "Montero (Call Me By Your Name)" in 2021. After immediately stopping any further sales of the shoes, Nike eventually settled the lawsuit with MSCHF.
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