Rap, Reputation & the Law: Drake vs. Kendrick Lamar #302

The hip-hop world has been on fire with the ongoing feud between Kendrick Lamar and Drake, but this battle has now spilled out of the recording booth and into the courtroom. While rap beefs typically play out through diss tracks, Drake has taken an unprecedented step by filing a federal defamation lawsuit against Universal Music Group (UMG).

In this episode of The Screen Lawyer Podcast, Pete Salsich unpacks the legal drama behind Drake’s lawsuit, breaking down what defamation really means, how the law treats public figures differently, and the potential impact this case could have on the music industry.

Capes Sokol, Attorneys at Law


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Transcript

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Hey, did you watch the Super Bowl? I did, at least for a while. The game was so bad. If you're not an Eagles fan. But I stuck around long enough, like hopefully you did to see the halftime show with Kendrick Lamar. And in that show, while there was all kinds of interesting cultural references and there's opinions all over the place. One thing for The Screen Lawyer that stuck out, there's a defamation case about this song, and it's pretty interesting. Stick around. Hey there. Welcome to The Screen Lawyer podcast. I'm Pete Salsich, The Screen Lawyer. And today on the episode, we're going to dig in a little bit to what's underpinning the very high profile Kendrick Lamar versus Drake feud, I guess, is the right word. It's been going on for a while. diss tracks back and forth over the years, taking shots at each other and, you know, getting pretty, each side, being pretty offended by the other. And then it seems to drop down and then it exploded again. And most recently, as many of you probably know, the Kendrick Lamar song Not Like Us, which was won all of the awards this past year. has specific references to Drake in which it's pretty clear there doesn't seem to be any doubt at all that this is. These are direct allegations against Drake calling him a pedophile, sex offender, etc. someone who needs to be stopped and the images that associated that are included. The cover of the release includes a picture of Drake's house, aerial view with marked up with red arrows and things like that to make it look like it's a it's the the site of a sex offenders location that people should go take action. Well, that's obviously very controversial in and of itself. And Drake has vigorously denied it. I've never seen anything that anybody's offered any allegation of proof or time or anybody else like that. and so Drake originally filed a lawsuit last fall against Universal Music Group and Spotify. And it was interesting because in that case, the argument there was more that those two that his own record label. Interesting. And one of the unique things about this is Universal Music Group represents both Kendrick Lamar and Drake, but they have different divisions underneath UMG, and each of those artists are represented under one of the other divisions. But that's an interesting, quirk in this case. And he's really suing his own label. But the allegation against UMG and Spotify was primarily based on arguments that they had manipulated, using bots and other things to manipulate the number of streams to make that song go viral. And it certainly did go viral. But Spotify and others reacted like, that's why would we do that? To elevate one over the other. People get to like the music they like, etc. was sort of the responses. Well, Drake apparently had some meetings, or his legal team had some meetings with both UMG and Spotify. And shortly, before the Super Bowl, a couple of weeks before the Super Bowl, he dropped that lawsuit, just dismissed it. But then like a couple days later, filed a new claim. And this is the one that's very interesting we've been talking about today. So this is a new, case in federal court alleging Universal Music Group of accusing it of defamation for it. And there's other claims in the case, but this is the primary one that I think is interesting. Accusing them of defamation but did not sue Kendrick Lamar, so he didn't. You know, Kendrick Lamar is the writer, the speaker, the the person entity, whatever, who put the speech out in the first place. And when you analyze a defamation case, you start there. That speaker, whoever put the allegedly false statements out into the public versus the speaker, there are other, organizations that can be sued for defamation, such as a label for promoting it. So clearly, this isn't an allegation that Universal Music Group or somebody there wrote the lyrics and put them in, Kendrick's mouth, but instead that they promoted this knowingly false, song, raised it to massive levels, conspired to get it out and create a viral suit just to drive money. Now, it still begs the question of why would UMG, you know, promote one over the other? But frankly, I think most people will agree that both Drake and Kendrick Lamar have benefited in some way from this public feud. Both of their tracks are being gobbled up quickly, so in a way UMG might be accused of manipulating this entire thing to just drive sales. That's kind of the argument I think, that Drake is making in this case, but underlying it is still this defamation claim. And we've talked about defamation here in the past, but it's worth restating. It's a pretty simple, set of facts that you have to prove. Maybe not easy to prove, but the number of facts are simple. There has to be a a false statement of fact. So if somebody said, you know, Drake's an alien from whatever, well, that's not a statement of fact because no one could believe it was actually true. But to say Drake is a pedophile, that's a statement of fact, no doubt about it. And it's a defamatory statement, defamatory per se, in the sense that there isn't sort of a wiggle room about whether that would really harm a reputation, no question at all. So you have a statement again, assuming it's false and there hasn't been anything that I've seen that indicates that it's true or that there's any factual basis for it. I don't know what Kendrick has in his head or what he thinks he knows, but nothing like that has come out. And Drake is saying has the, defendant saying, no, it's absolutely false. So under those circumstances, if those are the cases, if that's the case, then it would be defamatory. But this is where it gets interesting. We'll talk about another case in the second about this as well. Drake is no question a public figure. So is Kendrick Lamar obviously. But since for about 50 years we've had case law in this country, New York Times versus Sullivan, very famous Supreme Court case in which it established for the first time in a defamation case against a public figure that the plaintiff had to show actual malice, not just that the statement was false and that it was defamatory, but that it was made with actual malice. And that's a standard that, says the speaker, you have to show clear and convincing evidence that the speaker knew that it was false when they made the statement or showed reckless disregard for the truth or falsity. And so essentially how that would be applied in something like this, you would say, well, if, it's clearly a defamatory statement. So anybody that would hear that would know instantly, I better check this out. Is this true or not? Before I repeat this, before I say this, I have an obligation to do a reasonable investigation to know whether it's true, they're true or false. And frankly, if I can't prove that it's true, or definitely prove that it's false, I probably shouldn't repeat it without getting more information. That's how this standard is essentially supposed to work. But what's being what's interesting about how this has developed over time is it's become there's a lot of arguments that it's become essentially a free pass for journalism to say whatever they want about public figures. because it's very hard to prove. The actual malice standard now typically comes up in a journalism context when that, newspaper or public publication of some side, a news reporter, television station, whatever, reports on some things. And a lot of times they are reporting on allegations other people have said. And so there's this other context in the law here that talks about a fair report privilege. Certain journalism journalists are, permitted to report what other people have said, and as long as they report it accurately and those statements have been made in public filings or findings in a court, something like that, not just some guy on the street, but some, you know, I'm reporting on the things that happened in the courtroom today. And this is what we said. If that's what's happening, then the report about that, even if it repeats the defamatory statement, is not itself defamation. The reporters get the privilege to make that kind of report. So that's kind of hanging out there in this journalism context as well. And what happens, though, is that there's at least an argument to be made that while a lot of us have just sort of accepted that that's the standard, it really can get in the way of getting, you know, when there is real defamation, actually getting some kind of judgment for it. It kind of came up last year in the Johnny Depp versus Amber Heard lawsuit, in which they were both suing each other and claiming false statements. But Johnny Depp ended up winning that case. And among the findings that the jury made were that the false statements had been made and they were made with actual malice, with knowledge of the falsity. and so they you know, courts tend to simply apply this actual malice standard. Well, that leads us to, cert petition. So this is a petition for certiorari. When a party petitions the US Supreme Court to take a case, you probably know or may not know, the Supreme Court only takes cases after they have worked their way through the rest of the court system. And there's some kind of very important issue that needs to be addressed and settled nationwide. Sometimes there's a split. We got a court and the Ninth Circuit in California making one rule, and the Second Circuit in New York making a different. And that needs to be resolved. Well, Las Vegas casino mogul Steve Wynn, recently filed a petition for certiorari to the US Supreme Court to reconsider the actual malice standard in New York Times versus Sullivan. And the facts in that case are, again, dealing with, a apparently and unequivocally false statement. So there were some reports made, against Steve Wynn, that he had been accused of rape in the 1970s. And apparently the underlying the way it came out is that the, journalists just reported that these people had said these things while they went to trial court and turned out these claims were incredibly fanciful, like virtually impossible. And the trial court, trial court found they were false, absolutely false, and almost like, you know, just so obviously false, but again, very defamatory in the claim. And when sued and it worked its way through the court system and ultimately the courts, even though they agreed that these were defamation, they said that the he did not prove actual malice, he couldn't prove reckless disregard for the falsity. they were allowed to just say, well, so-and-so said it without doing any further investigation. And that defeated his claim. And so he's brought this petition for certiorari to ask the Supreme Court to change that standard and to I don't know exactly what the standard would be, but essentially, probably just to reduce that level, if I prove that you said a false statement about me, that's enough. And the argument is interesting. If you read that petition, it's interesting. It really the arguments are primarily based on the world in which we live right now, in which, again, if you spent any time in journalism or any time in the media these days, everyone's hitting on you that traditional media is dead or what happened. We used to be able to trust the media, etc., etc. and it depends on, you know, wherever you are in the political spectrum, somebody is complaining that way about the other side. And just generally there is, you know, citizen journalism. It's not necessarily a bad thing, you know, but it is also not necessarily a good thing. And one of the things that has gone away is any kind of repercussion when people just say stuff out in the media, right? And particularly even news agencies now are constantly being accused of maligning public figures. Certainly, President Trump has threatened defamation suits against lots of media for coverage of their coverage of him. But he's not the only one. And so we were literally living in an arena where, I think it's fair to say there's very little, and I don't know what's the right word breaks, guidelines, you know, whatever limitations on what journalists or anybody claiming to be a journalist can say about a public figure with almost no repercussion. And that's what Wynn is going after with the Supreme Court and had, you know, so I don't know how to predict how that would go, but it's on its face. I think it's a reasonably compelling argument to at least revisit that standard and maybe give it some new guidelines in this new media age. that lot has changed since that case was decided. And so maybe it is time to revisit that sort of thing. And one of the arguments they make is that, you know, it's designed people will say, well, that's only if you're a public figure, if you're a private citizen, you can sue for defamation and you don't have to prove actual malice. But they point out in the media, let's say you're a private citizen and you accuse a public figure of sexual harassment or something like that. Well, the moment your identity comes out, you now are a public figure because there's all sorts of coverage of you, and people can say things about you and you try to sue back for them and they argue you're a public figure, actual malice standard. It's very unclear kind of what it means to be a public figure these days. I mean, arguably I don't have that big of a public, but you can help make it bigger. But The Screen Lawyer has got a little bit of a public figure persona, right? Simply because I'm putting myself out there. And that's true of lots and lots of people. We pop back into the Drake / Kendrick Lamar situation. They're both public figures, so there's no question that if there's no change to the law, ultimately the actual malice standard has to apply. And in this case, how are you going to prove that, how is Kendrick Lamar or Universal Music Group prove that they took a reasonable investigation and concluded that they have a reasonable belief that the accusations against Drake are true? Because that's really what they'd have to say in order to defend themselves. because they're not going to be able to prove they didn't. You know, I think it's pretty easy to say they knew it was false or Kendrick knew it was false or they didn't investigate. So is that standard going to be what applies here? Hard to say. But right now I think it would have to be. And what's interesting about the, choice to sue UMG and not Kendrick himself, I'm not sure what else is going on in there, but one of the normal way that would proceed is if, let's say I say something, I say something defamatory, and then a much bigger, out media outlet repeats it and they only sue like I give the information to my publisher, and the publisher puts it in the book and puts it out there. Well, the publisher is probably has a contract with me saying, you are responsible for the words that you say. And if we get sued for defamation because of something you said, you have to cover us. So in this would situation, UMG get sued, UMG would turn around to Kendrick and say, hey Kendrick, this is on you, not on us. But he hasn't sued Kendrick. And I don't know if they will still make that claim against Kendrick or if somebody there will have found the evidence will show they were very involved in the in the crafting the song and the choice to keep it in and choice not however right. But clearly they have promoted it and celebrated it. So. And in fact, I think they've owned it themselves, in addition to whatever liability Kendrick has. If there's liability and this is back to the actual malice standard, I mean, and under any other circumstances, normally you would say, oh my God, if somebody's accused a public figure of of being a sex offender, etc., and it was false and they knew it. Slam dunk. No question. The record gets taken off the airwaves, lots of money paid, etc. but in this situation, if actual malice is the standard, they may not be able to overcome this essentially very difficult thing to prove here that somebody really intended and knew it was false, etc. because probably somewhere there, some allegations or something that somebody said and it'll be in one of these gray areas if that's the standard. And so it'll be interesting to see if the actual malice standard, whether the Supreme Court takes it up, and if so, would it impact a Drake versus UMG Kendrick case? Hard to tell, but it's definitely in the news in the court system. And it's something to watch carefully because, we live in an environment. We see it here all the time, not all the time, but fairly frequently. We get calls from people who think believe they've been defamed on social media. Somebody said something bad about them or their business. And it's an incredibly difficult thing to, sometimes to advise clients on, on what's what's involved in a lawsuit like that. Is there anything that could be recovered? How badly have you been harmed? Or sometimes maybe you feel terribly harmed by it, but only a small audience saw it. But the moment you filed the defamation case, suddenly many more people will see the same thing that you didn't want anybody to see. It's a really tough situation, puts a lot of personal stuff at risk when you get any of these lawsuits. So it'll be very interesting to watch how these turn out. So there you have it. You didn't know that this was going to be a Super Bowl, episode about defamation. But there you go. That's what happens in our culture these days. So that's our episode for today. We'll be watching this very closely and keep you updated. If you've enjoyed this content, you like this podcast. Thank you for listening and please remember to subscribe, find and follow us wherever you get your audio podcasts. And if you're watching on our YouTube channel, definitely subscribe! Hit that like button and get all of our content. You can also find us at TheScreenLawyer.com. Take care.