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.

Filed Under: copyright, derivative work, drake, public domain
Companies: baden baden