Experts Weigh In on Drake’s Legal Filings Against UMG: ‘This Gets Nowhere Near Trial’
Drake’s taken the Kendrick Lamar beef from the court of public opinion to actual court. This week, Drake’s attorneys made a pair of legal filings that state their intent to find out if Universal Music Group, the parent company of his label Republic Records, sought to artificially boost the acclaim of Lamar’s “Not Like Us” diss by paying Spotify and iHeartRadio. The filings also allege on “information and belief” that bots and other forms of payola were used to inflate streams and that Universal was complicit in “defamation” by supporting a song that accused him of being a “certified pedophile.”
The crux of both filings is apparent in a portion of the second document, which states, “The record-shattering spread of ‘Not Like Us’ on streaming, sales, and radio play was deliberate and appears to have relied upon irregular and inappropriate business practices.” Universal came out swiftly after the first lawsuit, telling TMZ, “The suggestion that UMG would do anything to undermine any of its artists is offensive and untrue. We employ the highest ethical practices in our marketing and promotional campaigns. No amount of contrived and absurd legal arguments in this pre-action submission can mask the fact that fans choose the music they want to hear.”
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In the past 24 hours, many have wondered what Drake seeks to achieve with the petitions. Some have speculated that he’s seeking to leverage Universal for information, allowing him to potentially sue for a breach of contract and get out of his deal. Others surmise he’s simply trying to put an asterisk on “Not Like Us’” success to push back on the popular sentiment that he lost “the great rap war.”
Rolling Stone spoke with co-founder of streaming service Audiomack Brian “Z” Zisook, entertainment lawyer Kevin Casini, and another entertainment lawyer who requested to remain anonymous for their insight on the filings. All three people are equally unsure what Drake’s endgame is and feel like it’s a tenuous suit — specifically, the claim of defamation amid a rap battle.
Casini clarified that no lawsuit has been filed against UMG. The first filing, in New York, was a petition for access to information that would help them “direct and tailor” a lawsuit and “put the parties on notice to preserve documents.” Casini adds that the petition “doesn’t mean that all the parties named will end up as defendants, and it doesn’t mean that there won’t be other parties or different counts if it’s granted and the information obtained dictates.“ The second document, filed in Texas, was a request to depose people out of state, specifically someone from the Lone Star State-based iHeartRadio.
While the anonymous lawyer called the filings a part of Drake’s “justice play” against the industry, Casini called it more “whining than anything else.” The anonymous lawyer says these filings “could be” part of a long play to get out of his UMG contract, but Zisook and Casini are more skeptical, with the latter noting, “I don’t really understand how that would create leverage to cancel the recording contract that he has with Universal.” When faced with popular sentiment that Drake may be set to argue that Universal breached his contract by artificially promoting “Not Like Us,” Casini notes, “that would essentially be saying that Universal would be obligated not to market Kendrick’s song because Drake finds the content of the song undermining. And if the shoe was on the other foot, I don’t think Drake would stand for that “
And he adds, “Even in standardized recording agreements, there is going to be an opportunity to cure any breach of the terms. So I don’t know exactly what Drake thinks he would be able to leverage if that’s the move. I am not sure that that is the move.”
Zisook tells Rolling Stone that for Drake, there’s no endgame that offsets the self-sabotage of these filings. “No amount of money in the world is worth the reputational harm that Drake is causing to himself by filing these suits,” he says. “If Drake had learned Kendrick was about to release a record making these claims, and he filed a suit to block the song’s release, that would make more sense. But the song is out. It’s been out. The whole world has heard the record. Filing these suits serves as a reminder to the world. This is a classic case of the Streisand effect.”
Casini also evoked the Streisand effect by essentially noting that this litigation “really only serves to bring more attention to the lyrics that Drake finds offensive or objectionable. And I think the streaming numbers for the song will just go up again.” Lamar recently released his GNX album, which is poised to have another big streaming debut. The hysteria for the Compton rapper is already at a fever pitch, which may spur a second wind for “Not Like Us.”
Casini says that he thinks the filings “look like” a precursor to a SLAPP suit, or a strategic lawsuit against public participation. In an artistic context, he gives the example of a person filing a suit against a company for an unflattering documentary that they don’t want to be aired. In this specific instance, Drake would be fighting UMG’s participation in airing a diss song that accuses Drake of being a “certified pedophile.” In the second document, Drake’s representation states, “Before it approved the release of the song, UMG knew that the song itself, as well as its accompanying album art and music video, attacked [Drake’s] character … by falsely accusing him of being a sex offender, engaging in pedophilic acts, harboring sex offenders, and committing other criminal sexual acts,” concluding that UMG “could have refused to release or distribute the song or required the offending material to be edited and/or removed.”
Casini says that in 34 states, including New York and Texas, where Drake filed, an anti-SLAPP statute can be filed as a counter to the initial suit. Casini says some SLAPP suits “masquerade as if they’re looking for honest redress for grievances. But really they serve only to prevent expression and speech.“
The first filing notes that Drake believes Universal paid bots and engaged in payola to inflate “Not Like Us” success on streaming platforms. All three agree that payola and bots are rampant in the industry, but it will be difficult to prove. Casini says he feels like it would be difficult for anyone at iHeartRadio to be ordered to be deposed without a lawsuit first being filed. Zisook notes, “They would need to provide a paper trail, showing money or gifts changed hands specifically for ‘Not Like Us.'” The anonymous entertainment lawyer adds, “A smart person would obviously not create a paper trail in a way that’s traceable. I think there’s other ways that you could piece it together. There might not be a smoking gun.” But ultimately, their opinion is “this gets nowhere near trial.”
All three agree that if UMG were compelled to provide documentation of artificial streaming, their reveal could blow back on Drake. “It’s likely that a lot of artists, Drake included, have benefited [from streaming bots] without their knowledge,” Zisook says. “I think a lot of artists have had label [and] distribution partners, who have opted into above-board programs like Discovery Mode and have artificially manipulated streams, and the artist has no idea. And they don’t ask questions because it looks good.”
Casini notes he doesn’t believe that “Drake is interested in reforming the industry to the extent that the industry is broken,” adding, “I’m sure that he was on the beneficial end of support from the label that somebody else might consider payola at some point. So you have to be careful when you start casting stones.”
The anonymous lawyer notes that payola “disrupts the streaming royalty payout system in a way that is harmful and deceptive to, in particular, independent artists,” but ultimately feels like “these [aren’t] the parties that should be having this argument. And this [isn’t] the forum for these people to be doing [it]. This is a rap battle going wrong.”
While all three believe that evidence of payola is possible, they believe that Drake’s surmising defamation will be much more difficult to litigate. “Defamation is really, really hard to prove,” the anonymous lawyer says. ”Especially when you engage in a similar battle yourself.” They add, “I think if this wasn’t in the context of a rap battle and Drake wasn’t [dissing] himself, he’d have a lot better claim.”
Casini says, “I don’t really understand how Drake thinks that it’s injurious to him that the song released by Kendrick other than the fact that it’s harmful to his reputation,” citing Drake still having more monthly Spotify listeners than Lamar. Zisook adds, “I don’t think you can make an argument that their beef hurt the consumption of [Drake’s] back catalog whatsoever, so that was an interesting way that they framed this. If anything, artists who aren’t Kendrick Lamar and Drake lost because so much of the conversation was geared toward the two of them and not spent in other ways.”
From here, Casini notes, “Everybody gets a chance to respond.” Universal already responded to the initial petition but may have more to say about the second filing. And in Texas, Casini says, “I’m not sure exactly who would respond unless it’s iHeartMedia saying there’s no reason for us to be made to sit for a deposition, so we’re not going to do that.” While he believes the New York filing “has the most teeth,” he ultimately feels like the case for a lawsuit doesn’t have much “meat on the bone.”
“He may have lost the plot here a bit, but time will tell. I’m not sure how far this goes. Sometimes these things flare up, and then they just kind of go away.” “Zisook says. “I think it is in everyone’s best interest that this does not move forward,” and “the fact that it happened at all undeniably is going to damage Drake’s reputation even more than he has experienced over the last 12 months.”
The anonymous lawyer says they feel the disagreement “gets nowhere near trial” because of the difficulty of proving defamation. “The streaming bots and the pay-for-play thing, I’m assuming he feels strongly that there’s some documentation that can prove this. Ultimately, it doesn’t change anything about this battle, though. I don’t think the average consumer is going to say, ‘Oh, Kendrick paid for bots. Therefore, Drake actually won.'”
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