Drake and 21 Savage dropped their first joint album, Her Loss, just a few days ago and the pre-release rollout is already the subject of a fresh $6.2 million lawsuit. Condé Nast, the publisher of Vogue magazine, has moved to sue the rappers for including a fake version of the publication’s cover as part of their promotional campaign for the 16-track project, which also included a fake NPR Tiny Desk Concert, a send-up of Saturday Night Live, and a faux-segment on Howard Stern.
Teasing the album via Instagram on October 30, Drake posted a photo of the mock-up Vogue cover with himself and 21 Savage on the front cover, tagging Vogue and thanking editor-in-chief Anna Wintour for “the love and support on this historic moment.”
It was all jokes for the two rappers as they poked fun at the traditional album roll-out most big-name artists would typically go through with the media. It wasn’t a joke for Condé Nast, however, given the publisher is set to take the duo to court to seek at least US$4 million (AU$6.2 million) in damages or triple their profits from both Her Loss and the “counterfeit” magazine. Whichever is greater.
Drake and 21 did, after all, not only mock up a cover of Vogue but also printed actual issues and distributed them without permission. As such, Condé Nast is seeking punitive damages and an immediate end to any trademark infringement.
And look, whoever thought including a fake cover of one of the world’s biggest fashion publications in such a public domain was a good idea is exposing themselves quite a bit. But is this as open-and-shut as it appears? Drake did, after all, take it a bit too far in actually tagging Wintour and thanking her for her support knowing neither he nor 21 Savage had permission to mock-up a Vogue cover from Condé Nast.
Whichever way it goes down, Drake and 21 Savage’s lawyers may have to prove that the fake Vogue cover can be categorised under parody, which is protected as fair use under US Copyright Law. However, the same exemption isn’t afforded to satire. So while parodies of works fall under fair use, satire does not.
So which was it?
According to Copyright Alliance, satire and parody are differentiated as follows.
Satire: “the use of humour, irony, exaggeration, or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues.”
Parody: “A literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.”
Whether it’s one or the other, I couldn’t say. But we’ll see how things roll out when the lawsuit progresses. and whether the courts see this as a case of privileged rappers thinking they can emulate a known brand without any blowback or if it was indeed fair use.
In the days before the release of Her Loss, Condé Nast was reportedly asking the duo to take “remedial measures to curtail further public confusion,” in light of some other publications reporting on the fake Vogue cover as if it were real. Evidently, no one from either Drake’s or 21 Savage’s team took such measures, and so the publishing company is now alleging not only trademark infringement but also brand dilution and false advertising, amongst other claims.
Note that Pitchfork, which is owned by Condé Nast and parent company Advance Magazine Publishers Inc, has already given Her Loss a very average album review score of 6.4 out of 10.
