By Christian Glover
Image used under license from Shutterstock.com.
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] Significantly, Vogue’s reputation as “high fashion’s bible,”[2] means that 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]
The United States has laws protecting against trademark infringement. 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 Vogue 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] Drake and 21 Savage will likely face liability if Condé Nast can show that the rappers did not obtain consent to use the Vogue mark to advertise their album, and the advertisement resulted in confusion among consumers.
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” trademark.[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 may be tempting for entertainers to capitalize on an already-established brand to promote their work, these lawsuits should serve as a cautionary tale for artists who are considering using others’ protected trademarks without authorization. Although these types of promotions may be good for a quick boost in exposure and sales, the benefits may not be worth the legal troubles that follow.
[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] Compl. 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 2.
[9] Compl. 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] Compl. 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/.