Last week, artists Drake and 21 Savage released their album Her Loss. In the week beforehand, they – along with their communications firm Hiltzik Strategies – ran an ambitious (if questionable) street-marketing campaign to promote the album using the false premise that Drake and 21 Savage were to be featured on the cover of the November issue of fashion magazine Vogue.
As part of the campaign, each artist published social posts promoting both their appearance in Vogue and the Her Loss album. Those posts featured purported copies of the magazine and captions calling out Vogue editor Anna Wintour by name to thank her and Vogue for their “love and support.”
The campaign also included plastering copies of the magazine cover on city streets and even distributing actual magazines in New York, LA, Atlanta, Houston, Miami, and Toronto. (Certain unnamed attorneys are only a little in their feelings that Chicago didn’t make the cut.)
Problem was: Drake and 21 Savage are not featured in November’s Vogue issue and neither Condé Nast – publisher of Vogue – nor Anna Wintour had consented to the use of the brand, its intellectual property, or Ms. Wintour’s persona in this way.
The magazine distributed as part of the publicity effort was in fact not the November issue of Vogue, but a doctored copy of the actual October issue in which – according to the Complaint:
“Some pages have no modifications, constituting an exact reproduction of Condé Nast’s copyrightable content. Other pages are modified to superimpose promotional logos for [the Her Loss album]. Others include images of Anna Wintour that were not in the real issue, and in one case was doctored to interpose an image of Drake.”
(As NPR reports, the fake Vogue issue was apparently only part of the overall guerrilla marketing campaign for Her Loss, with Drake and 21 Savage also pretending to have performed on Saturday Night Live and NPR’s own Tiny Desk concert series.)
Upon learning of its existence, Condé Nast’s counsel contacted Drake, 21 Savage, and Hiltzik Strategies to demand they discontinue the campaign. When that call went unheeded, Condé Nast sued on Monday in the Southern District of New York and moved for a temporary restraining order.
The complaint alleges infringement of Condé Nast’s federal, state, and common-law trademark rights in the VOGUE mark, trademark dilution, false advertising, and violation of New York’s deceptive-practices act.
Notably absent is a claim for copyright infringement of Vogue’s October issue, though the Complaint notes that Condé Nast is in the process of registering its copyright in that work and anticipates filing an amended complaint once complete. (Registration of a copyright is a prerequisite to suing for infringement.) Also noteworthy is that – while Anna Wintour is not a party to the case individually and the complaint does not directly claim a violation of any state right-of-publicity law – part of the relief requested is an injunction against Defendant’s use of Ms. Wintour’s name or likeness for commercial purposes.
On Wednesday, the Court granted Condé Nast’s request for a temporary restraining order, enjoining Defendants from further use of the VOGUE mark or Ms. Wintour’s persona and requiring that they delete all relevant social posts, remove all posters of the fake Vogue cover, and pull from circulation all copies of the fake magazine. Defendants are due back in court on November 22nd to show cause why the injunction shouldn’t be made permanent. The complaint also requests extensive monetary damages, as well as payment of Plaintiff’s attorneys’ fees and costs.
The nature and scale of the alleged infringement here being so grandiose and so bereft of obvious legal defense, the more jaded (or, perhaps, practical) among us at InfoLawGroup presume that getting sued was, at a minimum, part of the assumed cost of this stunt and, at most, a planned extension of the longed-for publicity. Whether the cost proves worth the benefit, we will have to wait to see. (Or, in all likelihood, not see should this settle privately.) In the meantime – to take a lesson from the Her Loss hype playbook – no legal blog ever lost readers writing about Drake.