Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School
Vogue’s publishers have sued rappers Drake and 21 Savage for unauthorized use of Vogue’s trademarks and false representations in marketing their newest album, “Her Loss”. This follows Vogue’s controversial lawsuit asking a small English pub called “The Star Inn at Vogue” to change its name.
Condé Nast, the owner of Vogue Magazine, filed a lawsuit for trademark infringement and false advertising against Drake and 21 Savage on November 7, 2022, in the United States District Court after the artists released a parody promotional cover of the widely acclaimed Vogue Magazine, featuring a photo of Drake and 21 Savage atop the Vogue logo and multiple fake story headlines. The magazine was part of a faux press tour rollout, including a fake NPR Tiny Desk Concert and a fake Saturday Night Live performance. Drake and 21 Savage jointly promoted the fake magazine on their Instagram with the caption:
“Me and my brother on newsstands tomorrow!! Thanks @voguemagazine and Anna Wintour for the love and support on this historic moment”
The artists also mimicked Vogue’s promotional activities by distributing copies of the fake magazine in North America’s largest metropolitan areas, including New York, Los Angeles, Atlanta, Miami, Houston, and Toronto, and plastering posters of the counterfeit cover along streets and buildings in these cities.
This lawsuit followed a week of repeated demands to Drake and 21 Savage from Vogue and its counsel to cease their allegedly infringing activities and take remedial actions to curtail further public confusion. Given that the artists refused to take action and continued to benefit from the social media posts, Vogue requested and was granted immediate injunctive relief to prevent Drake and 21 Savage from using fake covers to promote their album. This injunction also prevents Drake and 21 Savage from using Anna Wintour’s likeness, including a doctored photograph of Vogue’s long-serving editor-in-chief and Drake, a full-page feature in the fake magazine. Vogue also requests statutory damages of up to $4 million US, though the court has yet to address these damages.
Though the post containing the counterfeit magazine was taken down from Instagram and the posters of the counterfeit cover along streets and buildings were removed because of the injunction, distributed copies of the fake magazine remain and are now being sold for upwards of $250 on e-commerce sites. Ample evidence demonstrates that this false representation caused confusion, including various online articles from major media sources which claim that Drake and 21 Savage landed the December Vogue cover and social media posts indicating users’ excitement for the fake cover.
U.S. District Judge Jed Rakoff agreed with Vogue and Condé Nast that there was sufficient proof that consumers were being confused and the publisher had been “irreparably harmed”, granting a temporary injunction for the production and distribution of the fake magazine. On November 17, 2022, Drake and 21 Savage agreed to this preliminary injunction and also agreed to stop using Vogue trademarks for their album promotion.
The counterfeit marketing that went into promoting “Her Loss” may have paid off, with the album reaching 411,000 sales during its first week and a #1 debut on the Billboard 200 chart. However, it is unclear if these sales can offset the potential damages of up to $4 million US requested by Vogue and other remedies that NPR and NBC may seek for the artists’ fake Tiny Desk and Saturday Night Live performances, respectively.
(Photo Credits: Condé Nast) (Alt text: Screen capture of Drake’s now-deleted Instagram post containing multiple copies of the impugned magazine cover)
