Drake vs Vogue – Further steps in the transposition of EU copyright provisions

DRAKE AND 21 SAVAGE SETTLE CONDE NAST LAWSUIT

As we reported back in November, rappers Drake and 21 Savage were sued last fall by Condé Nast for trade mark infringement. As part of the promotional campaign for their new album, the rappers had released a fake Vogue cover on which they both appeared, going as far as tweeting that this new issue would be hitting the newsstands and thanking Anna Wintour for her “love and support”. The fake cover had gone viral online. Condé Nast – Vogue’s publisher – did not appreciate the unauthorised use of its trade mark and sued both artists, requiring $4 million in damages as well as the end of all infringing activities.

A new development in this case occurred a few days ago. As reported by several US media outlets, the lawsuit was indeed recently settled by the parties. More specifically, Drake and 21 Savage paid an undisclosed amount of money to settle the issue, and agreed to comply with a permanent injunction barring them from ever using the Vogue trade marks again. Condé Nast’s representative expressed satisfaction as to this outcome, stating that it was clear in this case that the rappers had “leveraged Vogue’s reputation for their own commercial purposes”.

While governed by US law, this case is a good reminder of the fact that freedom of expression does not always prevail and cannot always be invoked as defence when third party rights are involved. Here, Drake and 21 Savage’s creative choices were possibly detrimental to the brand and image of Vogue and this is what prompted its publisher to take action.

EC REFERS SEVERAL MEMBER STATES TO THE ECJ FOR FAILING TO TRANSPOSE EU COPYRIGHT RULES

Last week, as part of its February infringement package, the European Commission decided to refer several Member States to the Court of Justice of the European Union (ECJ) for failing to notify the Commission of transposition measures under two directives with respect to copyright.

The Commission decided to refer Bulgaria, Denmark, Finland, Latvia, Poland, and Portugal to the ECJ for failing to notify complete transposition measures on copyright and related rights in the Digital Single Market (Directive (EU) 2019/790).

Secondly, with regard to the EU Directive on copyright and related rights applicable to certain online transmissions (EU Directive 2019/789), the Commission decided to refer Bulgaria, Finland, Latvia, Poland and Portugal to the ECJ for not notifying complete transposition of EU rules to the Commission.

These two Directives aim to modernise copyright rules for consumers and creators to make the most of the digital world. They protect rightholders from different sectors, stimulating the creation and circulation of more high-value content. They bring greater choice of content for users by lowering transaction costs and facilitating the distribution of radio and television programmes across the EU. On 23 July 2021, the Commission sent a letter of formal notice to those Member States who did not complete transposition of the two directives. On 19 May 2022, the Commission followed up with reasoned opinions to 10 Member States over failure to notify the transposition of Directive 2019/789 and 13 Member States regarding Directive (EU) 2019/790. The EC’s complete press release on this topic is available here.