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New York court orders Drake and 21 Savage to stop distributing their fake Vogue cover

By | Published on Thursday 10 November 2022

Drake and 21 Savage fake Vogue cover

A New York judge has issued a speedy injunction ordering Drake and 21 Savage to stop distributing the fake Vogue cover they created as part of a promotional campaign for their new collaborative album ‘Her Loss’.

The fake Vogue cover is a key part of a spoof heavy album marketing campaign, it basically implying that the Condé Nast fashion magazine is editorially supporting the launch of the record, which it is not. As well as posting the fake cover to social media, posters of it have been put up in cities around the US, and in some places actual copies of Vogue, but with the fake cover added, have been handed out.

Condé Nast started issuing cease and desist notices against Drake and 21 Savage – and the communications agency leading on the campaign, Hiltzik Strategies – as soon as it became aware of the fake cover. But when those notices achieved little, the magazine firm went to court, accusing the artists and their marketeers of infringing its trademarks, as well as unfair competition and false advertising, among other things.

In its legal filing this week, the publisher stated: “Defendants’ flippant disregard for Condé Nast’s rights have left it with no choice but to commence this action and seek the immediate injunctive relief requested herein, together with any and all available monetary remedies to deter the type of flagrant infringements and false advertising in which defendants have engaged”.

Quickly siding with Team Vogue, judge Jed Rakoff said in a ruling yesterday that Condé Nast had sufficiently demonstrated that, without its consent, “defendants Aubrey Drake Graham pka Drake, Sheyaa Bin Abraham-Joseph pka 21 Savage and Hiltzik Strategies LLC, and those acting in concert with them, have created and disseminated images of a counterfeit cover of Vogue magazine featuring the Vogue mark and an image of Drake and 21 Savage, as well as copies of a counterfeit magazine purporting to be a genuine issue of Vogue magazine”.

And, “defendants and those acting in concert with them have distributed and disseminated the counterfeit cover and the counterfeit magazine to the general public, including by posting the images of the counterfeit cover to social media, posting physical posters of the counterfeit cover, and by distributing copies of the counterfeit magazine in New York and other metropolitan areas across North America”.

Given those facts, “Condé Nast has a likelihood of success on its claims for federal and common law trademark infringement, false designation of origin and unfair competition, false endorsement, dilution, false advertising, and violation of [New York General Business Law]”.

“Among other things”, Rakoff went on “defendants’ actions are confusing consumers about the origin, sponsorship, or approval of the counterfeit cover and counterfeit magazine; misleading consumers to believe that these are genuine and authentic materials associated with Condé Nast and Vogue magazine; deceiving the public into believing that Condé Nast and Vogue are associated with and endorse the counterfeit cover and counterfeit magazine; diluting the ability of the Vogue mark to serve as a unique identifier of Conde Nast’s goods and impairing the distinctiveness of the Vogue mark”.

That means “Condé Nast has been irreparably harmed” and therefore a speedy injunction is warranted to stop Drake and 21 Savage’s Vogue spoofing promo campaign. “Issuance of the requested temporary restraining order is in the public interest to protect the public against confusion, deception and mistake”, Rakoff wrote, before adding: “The harm to Condé Nast in denying this application outweighs the harm to defendants in granting it”.

With that in mind, Drake, 21 Savage and Hiltzik Strategies have been ordered to stop distributing the fake cover and to remove any social media posts featuring or referencing it. They also have to take down all those posters and destroy any remaining copies of the mocked up magazine. Fun times.

Having got its injunction, Condé Nast’s wider litigation will continue because the publisher would also like some lovely damages.

What kind of damages? “Treble defendants’ profits from the sales of the album and the counterfeit magazine, or treble plaintiff’s damages, whichever is greater; statutory damages of up to $4 million; or defendants’ profits and plaintiff’s damages, increased subject to the principles of equity, in an amount to be determined at trial”. That kind of damages.

It could all turn out to be quite a pricey album marketing campaign.

This story is discussed on this edition of our Setlist podcast.