Vogue Covers

His Loss: How Drake and 21 Savage’s Counterfeit Vogue Cover May Cost Them Millions

Christian GloverNews & Insights

By Christian Glover

A New York federal judge recently blocked rappers Drake and 21 Savage from using a fake Vogue magazine cover of themselves to promote their newest album, “Her Loss.”[1] Due to Vogue’s reputation as “high fashion’s bible,”[2] the publication attracts top celebrities, models, and even royalty for interviews and photo shoots.[3] A feature on Vogue’s coveted magazine cover has the potential to elevate one’s personal brand and to promote their business engagements. As such, it appears the rappers availed themselves of the brand’s popularity by posting the fake cover on their social media accounts and disseminating its physical copies across major cities ahead of their album release.[4] In response, Vogue’s publisher, Advance Magazine Publishers Inc. (known more commonly as Condé Nast), sued the rappers for trademark infringement.[5]

Congress passed the Lanham Act (also known as the Trademark Act) to protect owners against unauthorized use of their federally registered marks.[6] One way for a plaintiff to prevail on a trademark infringement claim is to show that the defendant: (1) created a reproduction of a registered mark without the owner’s consent, and (2) applied said reproduction to an advertisement that was used in commerce in a manner likely to result in confusion.[7]

The rappers’ conduct appears to satisfy the conditions for trademark infringement. According to Condé Nast’s complaint, Drake posted the faux cover on his Instagram page ahead of the album release, stating “me and my brother on newsstands tomorrow!! Thanks @voguemagazine and Anna Wintour[8] for the love and support on this historic moment.”[9] Subsequently, the post generated over 800,000 likes,[10] with some users using celebratory emojis and expressing they would purchase the album.[11] Additionally, Condé Nast alleged the rappers disseminated the photo to more than 135 million of their social media users and distributed physical copies across several major cities.[12] Condé Nast is now seeking relief, including $4 million in damages,[13] and seems to have a high likelihood of prevailing since Drake and 21 Savage clearly did not have Condé Nast’s consent to use the Vogue mark to advertise their album through online posts and physical distributions. These actions, coupled with the evidence presented of consumers’ mislead beliefs, make it likely the rappers will face some amount of liability.

Drake and 21 Savage are not the only entertainers who have recently caught headlines for trademark infringement. In 2021, Nike sued MSCHF, an art collective brand, after it collaborated with rapper Lil Nas X on modifying Nike Air Max 97s into “Satan Shoes,” ahead of the rapper’s single. [14] MSCHF sold 666 shoes, which contained literal human blood and a reference to a Biblical verse about Satan’s fall from heaven.[15] Although Nike had no involvement in making the shoes, the product bore the company’s distinctive “swoosh” logo.[16] This resulted in “significant confusion . . . in the marketplace, including calls to boycott Nike . . . based on the mistaken belief that Nike has authorized or approved this product.”[17] Nike eventually settled the lawsuit.[18]

While it can be very tempting for entertainers to capitalize on the clout of an already-established brand to promote their work, lawsuits such as these should serve as a cautionary tale for artists who may consider using others’ protected marks for their own marketing purposes. While these types of promotions may be good for a quick boost in exposure and sales, the benefits may not be worth the legal troubles they bring along.

[1] Dave Simpson, Drake, 21 Savage Blocked from Using Phony Vogue Cover, Law360 (Nov. 9, 2022), https://www.law360.com/media/articles/1548402/drake-21-savage-blocked-from-using-phony-vogue-cover.

[2] Harriet Sweet, “The Fashion Bible”: A History of Vogue Magazine, Barnebys (May 18, 2015), https://www.barnebys.com/blog/the-fashion-bible-a-history-of-vogue-magazine.

[3] Naomi Pike, The Landmark Covers to Revisit from British Vogue’s 105 Years on the Newsstand Vogue Mag. (Apr. 27, 2012), https://www.vogue.co.uk/gallery/collectible-and-iconic-vogue-covers.

[4] Complaint at 4, Advance Magazine Publishers Inc. v. Graham, No. 1:22-cv-09517 (S.D.N.Y. Nov. 7, 2022).

[5] Id. at 19.

[6] 15 U.S.C. § 1127.

[7] 15 U.S.C. § 1114(1)(b).

[8] Anna Wintour, Vogue’s Editor in Chief, has been associated with the brand for decades. Sweet, supra note 4.

[9] Complaint at 2.

[10] Nicole Vassell, Drake and 21 Savage Sued After Using Vogue Covers to Promote New Album, Yahoo!money. (Nov. 8, 2022), https://money.yahoo.com/drake-21-savage-sued-using-201151197.html.

[11] Complaint at 2.

[12] Id.

[13] Id.

[14] Doha Madani, Nike Sues over Lil Nas X “Satan Shoes” with Human Blood in Soles, NBC News (Mar. 29, 2021), https://www.nbcnews.com/pop-culture/pop-culture-news/nike-sues-over-lil-nas-x-satan-shoes-human-blood-n1262406.

[15] Id.

[16] Id.

[17] Id.

[18] Victoria Albert, Nike Settles Lawsuit Against Company That Produced Lil Nas X “Satan Shoes,” CBS News (Apr. 8, 2021), https://www.cbsnews.com/news/lil-nas-x-shoe-nike-settles-with-company-that-produced-satan-shoes/.