Benny Franklin was right when he said that “nothing is certain except death and taxes.” But, if he were alive today – and an IP lawyer – he could have added that singers Drake and 21 Savage needed to speak to an IP lawyer before dropping their latest album, Her Loss.
Or, rather, before dropping their latest promotion for the album, which involved reproducing an entire issue of Vogue, complete with counterfeit images for the cover.
The courts would agree. In fact, they did.
In a ruling on November 10th, 2022, District Judge Jed S. Rakoff granted a temporary restraining order for the musicians to immediately stop distributing the faux magazine and remove all images of it, both on social media and on physical posters throughout the country.
Judge Rakoff issued this TRO because it was “in the public interest to protect the public against confusion, deception, and mistake.”
This is precisely why trademark law exists in the first place – to protect the public from deception when it comes to goods and services.
But wait, don’t we see things like this all the time, like on SNL or other comedy shows, where famous trademarks are routinely used and abused without repercussions?
No, because this is slightly – but clearly – different. In those instances, the use of a famous mark is permitted for parody.
What constitutes parody is a fine distinction but can essentially be summed up by this: In a parody, there are two separate but competing messages – the message of the original trademark and some secondary message that this particular usage of the mark isn’t to be taken seriously and is not related to the original trademark.
This is where Messrs. Drake and 21 Savage needed to speak to an IP lawyer: There was no secondary message in using the Vogue trademarks. They merely copied the trademark for the benefit that the brand could confer without any secondary message. Without express permission (e.g., licensing) and without the protection of parody, they were in total violation of Vogue’s trademarks and very likely to lose in court.
It’s hard to feel too bad for the musicians, though – death, taxes, and IP missteps notwithstanding. Her Loss debuted at the top of the Billboard 200.