The key question, I think, a court is going to ask is, “Is this really any different from launching your own Vogue?” Which would be pretty clearly a problem versus a promotional stunt, which could still be a problem. The first and perhaps most publicized claim in Condé Nast’s lawsuit against Drake and 21 Savage is trademark infringement. Tushnet specializes in trademark and false advertising law - she’s even advised and represented fan fiction websites in conflict with trademark owners. “I have saved this as a potential exam question because it is very much at the edges of art versus commerce,” she said to me before the judgment was publicized. To Rebecca Tushnet, a professor of the First Amendment at Harvard Law School, there’s quite a bit to chew on here. On Wednesday, a judge ruled that Condé Nast had a good chance of winning their case and that the faux- Vogue operation must shut down temporarily – but, you know, the point had been made. The principal claim is trademark infringement. Last week, Vogue publisher Condé Nast levied a seven-claim suit against the rappers for reproducing their work and materials without permission and causing confusion amongst consumers while doing so. No matter what Drake and 21 Savage hoped to accomplish with the faux- Vogue issue that kicked off the pseudo-media blitz ahead of the joint album Her Loss - impressive album promotion, thoughtful cultural commentary, just general hijinks, or all three - those magazines have been distributed, their covers have been plastered across surfaces tangible and digital, and they now have a lawsuit of at least $4 million on their hands.
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