(Image
via
Getty)
Every
so
often,
there
is
an
IP
story
that
captures
the
imagination
of
the
broader
zeitgeist.
Usually,
there
is
an
entertainer
or
famous
athlete
involved,
such
as
when
Kawhi
Leonard
took
on
his
former
sponsor
Nike
over
the
rights
to
his
“claw”
logo.
This
week,
a
very
interesting
IP
situation
developed
involving
two
famous
music
artists,
Drake
and
21
Savage.
The
situation
is
a
fast-moving
one,
with
a
temporary
restraining
order
entered
against
the
artists
on
November
9
by
the
SDNY’s
Judge
Jed
Rakoff.
In
his
order,
Rakoff
also
set
a
November
22
hearing
on
whether
a
preliminary
injunction
should
be
issued
as
well.
Concurrent
with
his
upcoming
treatment
of
the
preliminary
injunction,
the
judge
also
required
the
plaintiff
to
post
a
bond
of
$10,000
by
November
14.
As
you
can
guess,
the
case
at
issue
is
not
a
patent
dispute,
but
involves
forms
of
IP
where
restraining
orders
and
preliminary
injunctions
are
realistic
relief
for
IP
owners
to
pursue.
What
sparked
this
flurry
of
legal
activity
involving
two
of
the
music
scene’s
most
prominent
contemporary
artists?
Everything
revolved
around
a
curious
public
relations
strategy
employed
by
the
musicians
to
hype
up
the
release
of
their
top-selling
new
album,
“Her
Loss.”
As
noted
by
the
Hollywood
Reporter,
the
duo
employed
“several
spoofs
that
circulated
leading
up
to
the
album
release”
including
“bogus
appearances
on
NPR’s
“Tiny
Desk”
series
and
“The
Howard
Stern
Show.”
What
got
them
in
IP
trouble,
however,
was
their
decision
to
also
spoof
Vogue
magazine
by
creating
“a
complete
reproduction
of
the
October
issue
with
some
adaptions,
including
a
Photoshopped
image
of
Drake
with
a
young
Vogue
editor-in-chief
Anna
Wintour.”
That
was
followed
by
the
distribution
of
free
copies
of
the
“promotional”
issue
of
Vogue
in
a
number
of
high-traffic
locations,
with
Drake
also
sharing
a
post
with
his
124
million
(yes,
a
crazy
number
of
people)
Instagram
followers
that
thanked
“@voguemagazine
and
Anna
Wintour
for
the
love
and
support
on
this
historic
moment.”
What
might
have
all
started
in
good
fun
turned
very
serious
very
quickly,
however,
with
Vogue
publisher
Conde
Nast
filing
a
host
of
trademark
and
unfair
competition
claims
against
the
two
artists
and
their
public
relations
firm
in
the
SDNY
within
a
week
of
the
fake
Vogue’s
hitting
the
streets
and
social
media.
The
SDNY
complaint
is
an
interesting
read,
with
perhaps
the
funniest
bit
of
evidence
provided
as
proof
of
confusion
caused
by
the
fake
Vogue
magazine
being
the
updated
Wikipedia
entry
for
Vogue
U.S.
cover
models,
updated
to
show
Drake
and
21
Savage
as
the
newest
entrants.
Other
proof
of
alleged
confusion
submitted
including
a
picture
submitted
on
Twitter
by
a
fan
lucky
enough
to
get
a
few
hard
copies
of
the
“promotional”
Vogue
issue,
as
well
as
various
and
sundry
music
industry
outlets
hyping
up
the
release
of
the
new
album
—
while
also
mentioning
that
the
artists
were
also
newly
minted
Vogue
cover
models.
In
terms
of
generating
publicity
for
the
album
launch,
it
is
hard
to
argue
that
the
Vogue
vamping
strategy
was
anything
other
than
a
resounding
success.
Even
at
the
cost
of
a
lawsuit,
which
arguably
only
brought
more
attention
to
the
stunt,
again
to
the
benefit
of
the
artists
in
terms
of
more
attention
on
their
album
release.
Still,
the
attention
was
a
bit
short-lived,
at
least
in
terms
of
the
artists
having
the
ability
to
continue
milking
their
promotional
efforts
without
legal
recourse.
In
fact,
it
was
only
two
days
from
when
the
complaint
was
filed
when
Rakoff
announced
the
entry
of
the
temporary
restraining
order,
along
with
the
other
follow-on
proceedings
that
were
ordered
as
discussed
above.
In
his
decision,
the
judge
enjoined
the
artists
from
further
“using,
displaying,
dissenting
or
distributing”
the
fake
Vogue
cover
and
the
counterfeit
magazines
they
printed
for
the
promotional
campaign”
while
also
prohibiting
them
from
“referencing
Anna
Wintour,
Vogue’s
Editor-in-Chief,
for
commercial
purposes.”
In
short,
all
that
is
left
is
the
legal
reckoning
as
a
consequence
of
the
now-terminated
publicity
stunt.
Ultimately,
situations
like
this
are
a
potent
reminder
of
the
role
publicity-generation
can
play
in
IP
disputes.
While
perhaps
not
as
powerful
a
driver
of
adversarial
decision-making
as
emotion
is,
the
value
of
garnering
publicity
can
be
a
key
contributor
to
the
presence
of
litigation
as
a
means
for
resolving
IP
disputes.
Here,
there
is
no
doubt
that
the
artists
have
benefited
—
at
least
from
a
publicity
perspective
—
from
the
escalation
engendered
by
Conde
Nast
in
pursuing
IP
claims
against
them.
At
the
same
time,
this
situation
has
perhaps
had
some
benefit
for
Conde
Nast
too,
in
terms
of
demonstrating
the
value
of
their
Vogue
franchise,
as
well
as
their
willingness
to
aggressively
police
their
IP
rights.
As
with
most
IP
disputes,
the
likeliest
resolution
here
is
a
settlement
of
some
sort.
But
if
this
case
bucks
the
odds
and
goes
all
the
way,
I
suspect
Drake
and
21
Savage
will
be
forced
to
confront
the
cost
of
free
publicity.
Please
feel
free
to
send
comments
or
questions
to
me
at
gkroub@kskiplaw.com
or
via
Twitter:
@gkroub.
Any
topic
suggestions
or
thoughts
are
most
welcome.
Gaston
Kroub
lives
in
Brooklyn
and
is
a
founding
partner
of
Kroub,
Silbersher
&
Kolmykov
PLLC,
an
intellectual
property
litigation
boutique,
and Markman
Advisors
LLC,
a
leading
consultancy
on
patent
issues
for
the
investment
community.
Gaston’s
practice
focuses
on
intellectual
property
litigation
and
related
counseling,
with
a
strong
focus
on
patent
matters.
You
can
reach
him
at gkroub@kskiplaw.com or
follow
him
on
Twitter: @gkroub.