A Harvard Law Professor Breaks Down Vogue’s Lawsuit Against Drake and 21 Savage

No matter what Drake and 21 Savage hoped to accomplish with the faux-Vogue issue that kicked off the pseudo-media blitz ahead of the joint album Her Loss —  impressive album promotion, thoughtful cultural commentary, just general hijinks, or all three — those magazines have been distributed, their covers have been plastered across surfaces tangible and digital, and they now have a lawsuit of at least $4 million on their hands.

Last week, Vogue publisher Condé Nast levied a seven-claim suit against the rappers for reproducing their work and materials without permission and causing confusion amongst consumers while doing so. The principal claim is trademark infringement. On Wednesday, a judge ruled that Condé Nast had a good chance of winning their case and that the faux-Vogue operation must shut down temporarily – but, you know, the point had been made.

To Rebecca Tushnet, a professor of the First Amendment at Harvard Law School, there’s quite a bit to chew on here. “I have saved this as a potential exam question because it is very much at the edges of art versus commerce,” she said to me before the judgment was publicized. Tushnet specializes in trademark and false advertising law — she’s even advised and represented fan fiction websites in conflict with trademark owners. 

“Sometimes when courts deal with art, they sort of think to themselves, ‘Okay, well maybe we should give a little more leeway. Maybe we should ask for more to make sure that if we’re going to suppress art — we want a good reason,” she said. “I think this is why Vogue is carefully and understandably presenting this as ‘This isn’t really about art.’ It could have been like if [they’d] been launching a new shoe campaign, this might have been the same thing. They’re going to want to present it as detached from having anything artistic to say.”

Here, Tushnet explains why that may or may not matter, offers her take on the legal lengths Condé Nast has undertaken in the name of its signature brand, differentiates the allegations, and calls one of them BS. 

The first and perhaps most publicized claim in Condé Nast’s lawsuit against Drake and 21 Savage is trademark infringement. Where do you think that argument stands?
The key question, I think, a court is going to ask is, “Is this really any different from launching your own Vogue?” Which would be pretty clearly a problem versus a promotional stunt, which could still be a problem. So, courts have said that when we decide something is art, you get more leeway for that. We have to tolerate a higher risk of confusion to allow artists to do the experimenting that we want them to be able to do. But that being said, you can’t make explicitly false claims. And there’s certainly a reasonable claim here that these are explicitly false claims that people believed, at least for some short period of time.

About the art of it — in reading the complaint, there seems to be language framing Drake and 21 Savage’s Vogue mock-ups as advertisement and commerce. How crucial is the framing of the stunt to the case?
That’s a really good question. And it’s actually really hard because courts have long recognized two different things. First, it’s okay for artists to make money. So, if we said you can make art as long as you didn’t make money, we wouldn’t get very much art. Same with news reporting, right? So, you want to let artists have a certain amount of freedom, but you also eventually want to draw the line. 

So, the extreme version is if someone comes and says, “Here’s a new Stephen King novel,” right? And it’s actually, like I wrote it. Clearly, you’re going to deceive a lot of people to no good end. So, the fact that it’s a novel doesn’t mean that there’s no protection against deception. 

On the other hand, [if] somebody does a spoof or something, we want to give leeway for that, at least for purposes of not taking the world too seriously, but [for] not interfering with an artist’s ability to talk about the world around them. You want to let artists have that sort of ability to portray reality, to make fun of the system. So if I were to post a picture on Instagram of me Photoshopped onto a Vogue cover, presumably, everybody would be okay with that. Nobody would seriously believe that I was on the cover of Vogue.

The difficulty, and the really interesting thing is, it’s not crazy to think that Drake would be. And so that’s what makes it hard, where it is both a claim about his cultural relevance, but also not an unbelievable one. And so at that point, does his ability to assert his cultural impact have to give way to Vogue‘s ability to protect the exclusivity of the Vogue cover? And the answer might be yes, if enough people are fooled. Now, we might look at the fact that there isn’t much signaling that it’s a joke unless you know the rest of the campaign. My sense is that if you were a Drake fan, you probably did get it. But not everybody is, and so the tough question is [how] to balance those; the ability of somebody to make claims that will make sense to their audience, versus the fact that apparently some general news outlets got confused and thought it was really happening, which I’m not sure happened with the other parts of the campaign.

I’ve thought about that. To cite the confusion, the complaint brings up some of the outlets that wrote about the Vogue cover as if it was real. One is Wikipedia. It wasn’t the New York Times. Will it be relevant, the nature of those outlets?
This is a hard question and I’m not sure. Part of what makes this case so interesting is that it gets to a lot of things that have changed in the information environment that courts haven’t yet fully figured out how to handle. So what does it mean if a digital news outlet, which maybe doesn’t have really experienced reporters or is used under time pressure and sort of going by the headlines — what does it mean if they pick that up and disseminate it? Should that count?

In false advertising, it’s generally a little easier because we say we look for an impact on purchasers. That’s how we tell if it counts. Trademark law has gotten much more expansive than that: sometimes if you’re confused and nothing happens, courts will still say that violates [trademark] law and that may well be a mistake. That’s sort of detached from the point of protecting consumers. But trademark law has definitely gone there in the past.

The fact that online, there’s someone who will believe anything, is a challenge. If you say the only thing we care about is deception, you’re always going to find someone who is deceived. The point of a trademark is to let consumers have certainty about what they’re buying, so we probably should be looking for a connection to a purchase, but current trademark law generally doesn’t.

False advertising is, of course, another one of the claims Condé Nast is suing 21 Savage and Drake for on Vogue’s behalf. What are your thoughts there?
False advertising is different from trademark [infringement] in that in false advertising, you generally have to show that the claim was material to consumers, that it would be likely to affect a purchasing decision. And I honestly suspect that that’s a harder sell because, first of all, Drake is already famous. So, the idea that he’s going to sell more because of landing a Vogue cover is maybe not as inherently persuasive as it is for somebody you’ve never heard of before that you might try out because you thought that they were on Vogue.

A distinct claim in the suit is dilution: Condé Nast alleges that Drake and 21 Savage’s use of the Vogue trademark is “is likely to cause dilution by blurring and/or tarnishment, by creating a false association between [the rappers] and Vogue magazine, impairing the distinctiveness of the VOGUE mark, and impairing the reputation and goodwill associated with the VOGUE Mark.” What do you make of this?
You’re going to get my pre-existing bias here. I think that dilution, in general, is a made up idea to the extent that exists. It’s a bad idea. Basically, dilution is a cause of action that says if you have a famous enough trademark, you can control how people think about it. And so, the dilution argument is you [can] somehow make Vogue less special in some way. And in this case, it’s particularly implausible because, of course, they’re actually relying on the reference to existing Vogue — it doesn’t make much sense to say they’re going to make Vogue less special. It almost certainly retains just as much of its cache, as opposed to if somebody seriously went into business as low rent Vogue. Here, I just don’t see it. It relies on the existence of the current meaning of Vogue, which probably should not count as dilution, even if you believe it’s a real thing.

Now that we’ve talked about the main allegations in the suit, what could be said in defense of the faux-Vogue campaign?
What courts have generally said is that when they’re convinced that it’s art — which again, they might not be here — then they want some really compelling evidence that it’s going to cause harm to the trademark owner, usually by some explicitly false statement. Now of course, that’s what we have here. [Drake] says, “I’m on the Vogue cover,” and you have to know a lot more information to know that he’s not really on the Vogue cover. So even if the court treats it as art, he’s not [in] the clear. So this strikes me as something of an uphill battle for him. It’s an interesting question. Was it worth it? And maybe the answer is yes, there are some people for whom all publicity is good publicity.

To get a little more granular, does it matter how realistic fake Vogues looked? Apparently the copies their street teams distributed seem authentic until you start thumbing through them, then the parody becomes clear.
Absolutely. The cruder or less plausible it is, the easier it is to get the joke. Even if we take art out of the picture entirely, trademark infringement generally requires confusion. If you saw something on Saturday Night Live about somebody being on the Vogue cover, you wouldn’t necessarily believe it, or if it was The Onion, right? There’s a lot of context there that instructs you how to read it. That’s also what I mean about for Drake’s fans who’ve seen the rest of the campaign, they have actually learned how to read that, but of course they’re not the only people watching it.

Plus, the rollout of the other spoofs didn’t come immediately after the Vogue spoof circulated. The others, the “Tiny Desk,” “Howard Stern”—  those things came later. So it didn’t necessarily unveil itself to be fake immediately, even if you are a fan. Oh, and if the fake magazines weren’t sold for a profit. Does that count for anything?
It’s hard to say. I think the answer is it doesn’t change things a lot because he still has something to sell you in the end. It’s a promo campaign for something. It is a promo campaign for art, but maybe it’s not connected enough to the art to care about that.

What, if anything, might be the greater implications of this case be for art, for free speech, for expression — just based on what’s happened so far?
It’s really hard to say at this stage. We’ve only heard from one side. There may be a lot more to come. There may be a settlement. A lot of these cases do settle. I think the lesson that I’ve been thinking about for a lot of these cases is that every field of law confronts a bunch of boundary pushers. There are trademark owners who make ridiculous infringement claims. Like Monster beverages. If you call your largest size of drink, “the Monster,” they’ll go after you. But if you call the largest size of bike that you offer [that], they will also go after you. That’s just silly. But they assert their trademark rights.

What would you say is the motivation there?

I would say there are two things. People often value being able to scare other people. Also, I’m sure this is operating for Vogue too, people who work with successful brands and sometimes unsuccessful ones too, get a strong emotional attachment. They feel like there’s a moral injury. The Vogue cover is something that you earn and [they] didn’t earn it. That’s actually an insult to the editorial judgment. It’s a big brand, but I’m pretty sure that many of the decision makers there feel morally outraged and it’s not a purely economic decision.