Don’t Expect a Drake Trial
Rap fans weren’t the only ones shocked by Drake’s decision to sue Universal Music Group for releasing Kendrick Lamar’s diss track “Not Like Us.” Many lawyers are also scratching their heads over Drake’s case. The initial thoughts of three: “unique,” “puzzling,” and “outrageous.”
Drake is accusing the label group — which also distributes his own music — of defamation, harassment, and deceptive business practices, over promoting a song in which Lamar calls him a pedophile. Drake’s attorneys said he filed the lawsuit “to hold UMG accountable for knowingly promoting false and defamatory allegations against him.” UMG has strongly denied the claims, saying it would be “illogical” to work against one of their own artists. “We have not and do not engage in defamation — against any individual,” a spokesperson said. “At the same time, we will vigorously defend this litigation to protect our people and our reputation, as well as any artist who might directly or indirectly become a frivolous litigation target for having done nothing more than write a song.”
The three lawyers whom Vulture spoke to about the case agreed a trial would be unlikely. Instead, each wondered separately if Drake filed this as a bargaining chip in his upcoming contract renegotiations with UMG. Below, they break down the biggest questions.
How can a song be defamation?
The right to free expression makes it difficult to prove that artistic works are defamation. “The First Amendment gives creators a lot of room, and music is, by definition, creative content,” says Tre Lovell, who has represented defendants in defamation cases against MGM and A&E. For the defamation claim, Drake will need to argue that Lamar signaled that “Not Like Us” was true, and UMG knew it wasn’t while still releasing it. The lawsuit cites lyrics like “Rabbit hole is still deep, I can go further, I promise” as implying “the existence of evidence to support the allegations against Drake.” But Lovell says, in the context of a rap beef, fans aren’t expecting the truth. “It’s more about who can get more outrageous, who can get hurtful,” Lovell says. “But it doesn’t make it true, it just makes it more hyperbole.”
Jack Lerner, a law professor at the University of California, Irvine, co-authored the book Rap on Trial: A Legal Guide for Attorneys. He says it’s “a major flaw” that Drake’s case does not acknowledge the artistic context of rap music. “I’m uncomfortable with the idea that — and it is, in some ways, radical — someone could sue someone for defamation based on what was in a rap track,” Lerner says. “The baseline assumption at the heart of the accusation is that what’s said in a rap should be taken at total face value, as if it’s not artistic and fanciful at all. That’s just not the case in rap music, and has never been the case.”
Not to mention that Drake also dissed Lamar throughout the beef, even accusing him of abusing his wife on “Family Matters.” Lovell notes this could be used against Drake as an “unclean hands” defense. “If I’m asserting a claim over somebody, but I’m bringing some nefariousness to it — I did the same thing or I did something different — that’s a defense,” he says. “You can say, ‘Hey, you’re coming to this court having done it yourself, therefore you can’t blame me for doing it.’”
So why isn’t Drake suing Kendrick Lamar?
“This lawsuit is not about the artist who created ‘Not Like Us,’” Drake’s attorneys wrote. “It is, instead, entirely about UMG, the company that decided to publish, promote, exploit, and monetize allegations that it understood were not only false, but dangerous.” The lawyers agreed it seemed calculated for Drake to leave Lamar out of the lawsuit. “They’re certainly in a better position to prove acts of malice against him than they are with the label,” Lovell says. If Drake had sued Lamar for defamation, Lamar would have to admit “Not Like Us” was not true in defense, adds Camron Dowlatshahi, who has represented musicians and content creators. “Which maybe helps Drake in the court of public opinion, but he also looks soft to the hip-hop community that he has to resort to litigation,” he says. As of now, Lamar “doesn’t really have to address” the lawsuit because he’s not a defendant.
Do the safety threats add to Drake’s case?
Drake’s lawsuit opened by describing, in detail, the scene when his security guard was shot days after “Not Like Us” dropped. It also noted that multiple intruders went to Drake’s property after the song came out, and Drake took his son out of school in Toronto “due to safety concerns.” But Drake will need to prove UMG’s release and promotion of “Not Like Us” specifically caused those harms. Dowlatshahi thinks including those details in the lawsuit could have been “a PR move” to paint Drake as a victim. “It’s really hard to find the causal connection between Kendrick Lamar’s song, and specifically the comment about pedophilia or whatever other mistruths there are, and people saying, ‘Now I’m upset at Drake about that and we should go and harass Drake,’” he says. Plus, Lerner adds, the same harms could have occurred if Lamar never called Drake a pedophile. “If there had been a diss track that was just incredibly effective that didn’t make these allegations, you might still have online harassment or you might still have someone trying to attack Drake,” he says.
Why didn’t UMG do anything when Drake came to the label about “Not Like Us”?
Drake’s lawsuit claims UMG knew the contents of “Not Like Us” were false because the label would not have worked with Drake if it knew he was a sex offender. Lovell disagrees with that line of thinking. “How would they know the truth?” he says. “If the guy made music, made them a lot of money, maybe they would overlook him being a pedophile. Who knows? They’re not in the morality business.” In response, UMG said Drake was trying to target an artist who had “done nothing more than write a song.” The lawyers say that will be the label’s best defense: that it cannot fact-check the contents of every song it releases, because they’re just songs.
The lawsuit also says Drake approached UMG multiple times about the harm he said he was facing due to “Not Like Us,” and UMG declined to do anything about it. But UMG can justify that move. “It sets a pretty bad precedent to have one artist say, ‘Hey, this is bothering me,’ and then for UMG to have to, after the fact, review lyrics and determine which ones are based in truth or not,” Dowlatshahi says. Lovell adds that if UMG had stopped distributing the song, Lamar could have a case against the label for breach of contract — and Drake for tortious interference.
Not to mention that Lamar and Drake’s tracks in the beef were successful, routinely landing in the top ten of the Hot 100. “To be honest, they’re probably making so much money off this stuff that they’re just not going to get involved creatively at all,” Lovell says of UMG.
What about Drake’s allegations of fake streams and a pay-to-play scheme?
Drake is also accusing UMG of deceptive business practices in promoting “Not Like Us.” The lawsuit claims the label used “covert financial incentives” to promote it — alleging UMG paid at least one radio station to play the song, offered reduced licensing rates and financial payments to creators to use it, and paid third parties to fake streams using bots. Lovell sees this as the “the only potentially credible part of the lawsuit,” because artists are paid streaming royalties out of a finite pot of money. “If you’re adding a whole bunch of streams to one side, that person’s going to get a bigger piece of the pie because everybody else is getting a little less,” Lovell says.
Drake’s lawsuit attributes the allegation of 30 million bot streams to “one individual whose identity is unknown to Plaintiff” who made the claim “on a popular podcast.” “That’s going to get vetted very quickly,” Lovell adds. “They’re going to look at all the streams, and they can source them and they can tell very quickly if these are just falsified streams, if they are made up, or actually have a legitimate source.”
Does Drake just want to leave UMG?
Drake is going to renegotiate his contract with UMG this year. The lawsuit accuses the label of promoting defamatory allegations against him to devalue him ahead of those negotiations. “That’s a surprising and a pretty creative allegation to make, that they’re trying to up the numbers of a competitive rapper in order to get a better deal with another rapper,” Lovell says. But Dowlatshahi was not so surprised. “The music industry is a dirty game,” he says. “I don’t think this is beyond belief that a record company would potentially conspire and hurt one of their artists and promote another one.”
All the lawyers believe Drake’s main motivation for the lawsuit is to leave UMG — likely to be fully independent on his own label, OVO. “He doesn’t seem happy there,” Lovell says. “It’s not a good sign when you’re suing your label for fraud and defamation.”
Can Lamar still perform “Not Like Us” at the Super Bowl?
Drake’s lawsuit comes weeks before Lamar’s highly anticipated Super Bowl halftime show — and that might be on purpose. “I think it’s a play by Drake to put Kendrick in this potentially uncomfortable spot when Kendrick’s about to be the most viewed artist in the world for a period of time,” Dowlatshahi says. He thinks Lamar will still perform the song, since the NFL and Fox, which is broadcasting the game, are “a little too far removed for any sort of legal liability.” But Lovell “would not be surprised” if Fox asks Lamar not to include it in his set.
What happens next?
UMG will likely file a motion to dismiss the case. Lovell expects a judge to dismiss the defamation and harassment claims but move forward with the deceptive business practices claim. But none of the lawyers are expecting the case to ever go to trial. “To me, it just seems like he’s pissed off and he’s venting it through the legal system,” Lovell says. “I wouldn’t be surprised if this thing is quickly resolved.”
Even if that happens, Lerner is still concerned about the implications of Drake’s defamation argument. “I think that it is already undermining the efforts that so many both within the music industry and in the criminal-justice community have been taking to try and help courts and the public understand that rap is an art form,” he says, “no different from poetry, folk music, or any other art form where all kinds of hyperbole and exaggeration are used.”
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