Why is Vogue suing Drake and 21 Savage, and how good is the case against them? A Harvard law professor breaks down the lawsuit.
“Sometimes when courts deal with art, they sort of think to themselves, ‘Okay, well maybe we should give a little more leeway. Maybe we should ask for more to make sure that if we’re going to suppress art — we want a good reason,” she said. “I think this is whyis carefully and understandably presenting this as ‘This isn’t really about art.’ It could have been like if [they’d] been launching a new shoe campaign, this might have been the same thing.
The key question, I think, a court is going to ask is, “Is this really any different from launching your own?” Which would be pretty clearly a problem versus a promotional stunt, which could still be a problem. So, courts have said that when we decide something is art, you get more leeway for that. We have to tolerate a higher risk of confusion to allow artists to do the experimenting that we want them to be able to do. But that being said, you can’t make explicitly false claims.
On the other hand, [if] somebody does a spoof or something, we want to give leeway for that, at least for purposes of not taking the world too seriously, but [for] not interfering with an artist’s ability to talk about the world around them. You want to let artists have that sort of ability to portray reality, to make fun of the system. So if I were to post a picture on Instagram ofcover, presumably, everybody would be okay with that.
In false advertising, it’s generally a little easier because we say we look for an impact on purchasers. That’s how we tell if it counts. Trademark law has gotten much more expansive than that: sometimes if you’re confused and nothing happens, courts will still say that violates [trademark] law and that may well be a mistake. That’s sort of detached from the point of protecting consumers. But trademark law has definitely gone there in the past.
You’re going to get my pre-existing bias here. I think that dilution, in general, is a made up idea to the extent that exists. It’s a bad idea. Basically, dilution is a cause of action that says if you have a famous enough trademark, you can control how people think about it. And so, the dilution argument is you [can] somehow makeless special in some way.
Absolutely. The cruder or less plausible it is, the easier it is to get the joke. Even if we take art out of the picture entirely, trademark infringement generally requires confusion. If you saw something oncover, you wouldn’t necessarily believe it, or if it was, right? There’s a lot of context there that instructs you how to read it.
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