Jeweler Sues Rap Artist Drake For Copyright Infringement; Drake Fights Back Saying Design Is 5,000 Years Old

from the build-unto-Drake-a-statue-of-ridiculous-proportions! dept

It’s not too often you find a 5,000-year-old symbol at the center of a copyright infringement lawsuit, but that’s the golden age of copyright for you. [Lifetime + golden years.] Canadian rap artist Drake was sued by jeweler Baden Baden Inc. back in August of last year for allegedly producing knockoffs of an owl pendant created specifically for him by Michael Raphael, CEO of the Baden Baden.

Here’s the pendant in question, as pictured in Exhibit A of the company’s August 2013 filing. (Complete with tasteful paper towel backdrop.)

Sometime after Drake purchased this $50,000 piece of jewelry, Baden Baden noticed a stream of photos from Drake’s Instagram account showing identical pieces being worn by fans and friends, like the one below. (Complete with tasteful bird-flipping.)

It was this supposed copyright infringement that prompted Baden Baden’s lawsuit. In December 2013, Drake’s lawyers responded with a motion to dismiss, based on the assertion that Baden Baden couldn’t copyright the design because its source was in the public domain — namely, the Egyptian hieroglyph for the letter M, which dates back 5,000 years.

Drake’s legal rep even quoted a Disney lawsuit to make the point that derivative works must contain a certain amount of unique features to be protectable, which it argues Baden Baden’s owl pendant doesn’t (with the hieroglyphic being the original work).

The Second Circuit’s opinion in Durham Industries, Inc. is particularly instructive, and demonstrates why the Owl Pendant Work is not protectable. 630 F.2d 905. In that case, the Second Circuit analyzed whether three-dimensional dolls of various Disney characters (Mickey Mouse, Donald Duck and Pluto Dog) constituted protectable derivative works of the original copyrighted designs for these characters. Id. at 908. The Second Circuit explained that only those non-trivial, original features, if any, in a derivative work are afforded copyright protection. Id. at 909. Applying this standard, the court held that the dolls at issue were not protectable because “one look at . . . [the] figures reveals that, in each, the element of originality that is necessary to support a valid copyright is totally lacking.” Id. at 908-909. In reaching this conclusion, the court rejected the argument that “the originality requirement of copyrightability can be satisfied by the mere reproduction of a work of art in a different medium, or by the demonstration of some ‘physical’ as opposed to ‘artistic’ skill.”

This argument is stretched a bit here, but it’s always entertaining to see Disney’s arguments used to defend against copyright infringement claims. (And Disney’s attitude toward the public domain would certainly align with Drake’s legal rep’s — the public domain is free to use by anyone. Disney, of course, tends to undermine its “support” of the public domain by continually preventing anything else from entering it…)

Drake’s lawyer also argued in the filing that Baden Baden offered no more proof of infringement than screenshots of other people wearing owl pendants without any evidence that Drake created or sold the alleged knockoff pendants.

Despite this all occurring months ago, the story has resurfaced thanks to oral arguments being made recently in reference to Drake’s motion to dismiss. The basic premise seems solid (it’s a 5,000-year-old symbol) but whatever was actually deployed by Drake’s legal team apparently didn’t work. The motion to dismiss was denied and Baden Baden is free to continue pursuing this alleged infringement.

Drake may or may not be crafting “knockoffs” of the Baden Baden pendant, but the plaintiff’s statement of “upon information and belief” seems to rely almost completely on the latter. The evidence presented is nothing but screenshots of Drake’s instagram account. A quick search of the web finds many more owl pendants being offered by a number of resellers, none of which are Drake’s OVO (October’s Very Own) shop.

As for the argument that you can’t copyright the public domain — well, that’s not entirely true. The use of public domain material simply prevents anyone from claiming exclusive rights. Drake can make owl pendants and so can Baden Baden (and a host of others, apparently) but none of these entities can keep anyone else from using the Egyptian M as the basis for their creations.

Certain design elements can be copyrightable but the copyright registration listed in Baden Baden’s filing (VA0001858166) describes nothing more than an “OWL Pendant” and the photo shows nothing distinctive other that the eye/nose shape which presumably spells out “OVO.” What doesn’t help Baden Baden’s case is the fact that Drake has been using the hieroglyphic as a logo for quite some time already, so if anyone can make the claim that the symbol “belongs” to anyone, it’s probably Drake.

Baden Baden’s case seems pretty weak. It must have some merit as Drake’s motion to dismiss was denied, but as far as the paper trail goes, Baden Baden seems to be operating on the assumption that Drake is crafting knockoffs. Of course, if I was Baden Baden’s legal rep, I’d take the motion to dismiss as an implicit admission of guilt. After all, if Drake isn’t making knockoffs, then there’s no reason to point out the public domain origins of the pendant. The defense would be more interested in proving Drake isn’t in the knockoff business. But that “admission” by Drake’s legal rep came more than three months after the original filing.

Unfortunately, the conclusion the judge reached during oral arguments is still unknown. All we have right now is the fact that Drake’s motion to dismiss has been denied. It will be interesting to see where this leads. The recent Richard Price decision shows how little needs to be altered to be considered a protected derivative work. How the court will apply that to a source potentially in the public domain remains to be seen.

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Companies: baden baden

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Comments on “Jeweler Sues Rap Artist Drake For Copyright Infringement; Drake Fights Back Saying Design Is 5,000 Years Old”

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Anonymous Coward says:

They don’t have any proof that Drake is making or selling the knock offs, or even profiting in any way off of them, yet the lawsuit isn’t dismissed?

So, if I’m a famous person, and I buy a golden necklace with a Mickey Mouse at the end of it, and post pictures of me wearing it online, I could cause others to want to buy and wear it. But if people start to buy 3rd party knockoffs instead of the real thing, I could then be liable for their infringement, simply because I’m a famous person who gave them free advertising?

That’s completely bogus, that’s an even bigger issue then the owl not being copyrightable.

kitsune361 (profile) says:

Re: Re: Re:2 Re:

The “Just because he wearing does not mean he is selling it.” argument is literally point “C” of the motion to dismiss.

IANAL, but… Isn’t copyright infringement civil? “Preponderance of the evidence” is typically the standard in civil trials, sadly, not “innocent until proven guilty”.

Also, the Egyptian hieroglyph for “M” may be an owl but this appears much different than the hieroglyph owl pictured. You can’t copyright an idea or historical fact (the hieroglyph for “M”), but you copyright a particular expression of an idea. All those Instagram pics w/ the detailed feathers, “OVO” for a face, etc., look like the same particular expression of the [arguably public domain idea] of the hieroglyphic owl.

Funny question: If Baden Baden wins on copyright, and if Drake has a trademark on the co-joined “OVO” that makes up the owls face then couldn’t he also counter sue over trademark infringement? And then they could enjoin each other from legally producing that particular pendant?

Mason Wheeler (profile) says:

Disney, of course, tends to undermine its “support” of the public domain by continually preventing anything else from entering it?

I’ve never quite understood that. How is it that these laws have survived even the slightest smidgeon of judicial review? Retroactive copyright term extension is blatantly illegal on the face of it, because the Constitution explicitly prohibits them. Article I, Section 9 of the Constitution says that Congress shall not pass any ex post facto (retroactive) law, period, and it really should be that simple.

Avatar28 (profile) says:

Re: Re:

I think the argument is that because they are still under copyright when the law is passed it can still apply. They couldn’t for example, change the law to say that it’s now lifetime plus 200 years and place things that had already entered the public domain back under copyright.

Not saying that they’re correct but that is the most likely argument.

mattshow (profile) says:

Beating a motion to dismiss doesn’t necessarily mean the case has any merit. Judges are pretty reluctant to grant a motion to dismiss. Motions to dismiss are usually brought before any evidence has been presented to the judge. That means the judge has no way to assess whether the claims in the complaint are actually true. So they just assume they are. The question the judge asks themselves is “If everything the plaintiff said in their claim is true, does that add up to a case?”

So beating a motion to dismiss just means that plaintiff made the right allegations in their complaint. It doesn’t mean they have a single shred of evidence to support their allegations. They might still get shredded at trial.

Anonymous Coward says:

Funny, even discounting the 5000 year old design thing, isnt the pendant a piece created exclusively for this rapper? Should it not qualify at least as a work for hire, and thus its copyright belong to the singer? Specially given that the pendant is just a jewelry version of the design already in use on his work? Would they really execute such design outside of a request? If the jewelers intended to market this design in association to him to his fans, they would need his express permission. So the only point of the copyright owership analisys is – they did the jewelsmithing work, on behalf of the singer. There’s clearly no creative expression from the jeweller here.

So i think artists should start looking for 3d printing their bling by themselves.

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