Authored By Haviland Macy Marie Kebler, Esq. & Matthew Ersek
The publisher of Vogue magazine, Condé Nast, has filed a lawsuit against Drake aka Aubrey Drake Graham and 21 Savage aka Shéyaa Bin Abraham-Joseph accusing the duo of trademark infringement, brand dilution, and false advertising, among other claims. The controversy arises over fake Vogue magazines with Drake and 21 Savage’s likeness on the front cover, alluding that Vogue was promoting the rappers on their newest edition. The magazines were part of a “plug” to their new joint album “Her Loss.”
Fair Use and Parody have just been taken up by the Supreme Court for the 2023 term likely to clarify the standards for works of authorship or art that use other’s copyrighted work in a paradoxical manner. However, to avoid the confusion that surrounds the current standards for copyright infringment and fair use, Vouge has proceeded under a theory of trademark infringment relying on their brand name in this lawsuit.
Vogue, together with its associated entities, seeks to recover the greater of $4 million in statutory damages and triple the profits from the album and the counterfeit magazine sales or triple their awarded damages by the court. Vogue and their parent company, Advance Magazine Publishers, Inc dba Condé Nast, have made it clear they have not endorsed the duo through their magazine and want an injunction on the use of their “Vogue” mark immediately, as well as a cessation on the distribution of the counterfeit magazines and destruction of the remaining magazines.
The magazine was first revealed on Drake and 21 Savages’ Instagram accounts on October 30, 2022, which lead their followers to believe Vogue would be dropping a special edition. Because of the reputation of securing a cover for Vogue, Vogue is proceeding with allegations surrounding the fame that is associated with their brand and alleging that the rappers have used that to gain monetary advantage. The lawsuit also alleges a fully reprinted Vogue magazine with the fake cover was used “[t]o enhance the appearance of authenticity, [and] the rollout of this false campaign deliberately mimicked the promotional activities undertaken and encouraged by Condé Nast in advance of the release of each issue of Vogue.”
There have been several reports of confusion on the internet due to the rapper’s infringement on the Vogue trademark and copyrighted materials, which has led to the “widespread belief that the counterfeit issue and counterfeit cover disseminated by Defendants were real.” It has been reported that the rappers did not respond to requests from Vogue to stop using the false cover prior to the relates of the rapper’s new album “Her Loss” on November 04, 2022. Vogue and their parent company have made attempts to have the rappers take “remedial measures to curtail further public confusion,” which have been allegedly refused. Vouge’s lawsuit and the damages sought serve as a reminder of the far-reaching implications of Trademark Law in music and marketing.