Judge Advances Publicity-Rights Suit by Drake

MANHATTAN (CN) — A self-styled music impresario that unsuccessfully sued Drake for copyright infringement must face counterclaims from the rapper, a federal judge ruled.

Drake’s feud with Hebrew Hustle owner Stephen Hacker erupted in 2014 when the label claimed that Drake’s song “Pound Cake” improperly sampled a spoken-word track by the late Jimmy Smith. Though U.S. District Judge William Pauley III snuffed out those claims last year — finding Drake’s sampling protected under the fair-use doctrine — the suit remains ongoing because Drake lobbed counterclaims over Hacker’s website.

Hacker removed two references to Drake from his website on the day Drake’s attorneys contacted him, according to the ruling, but from December 2013 to July 2014 there was a photograph of Drake on the Hebrew Hustle homepage and a mention of Drake in a page dedicated to Hacker’s bio.

Drake (at left) claims that Hebrew Hustle violated his publicity rights by posting this photo of him posing with fellow rappers Lil Wayne and Birdman.

Drake is posing with fellow rappers Lil Wayne and Birdman in the unlicensed photo, which when clicked touted Hebrew Hustle’s supposed role in a Lil Wayne song.

On the bio page meanwhile Drake’s name appears in a sentence that says Hacker “played a heavy hand with his clients in the creation of hit songs for the likes of Eminem, Jay-Z, Kanye West, Lil Wayne, Drake, Nicki Minaj and others.”

Represented by Christine Lepera, Drake said the references misleadingly implied that he endorsed Hebrew Hustle or that Hebrew Hustle wrote or produced music for Drake.

Judge Pauley refused Tuesday to grant either party summary judgment, which would resolve Drake’s counterclaims without a trial.

As to Drake, who sought judgment only on his claims involving common-law right of publicity and a complementary statute in the California Civil Code, the judge said he could not issue a ruling without more proof that Drake is domiciled in California.

“All that Drake offers is his and his business manager’s sworn declarations, but no underlying evidence,” the ruling states. “While those declarations were sufficient to plead domicile, that does not mean they establish domicile.”

Pauley goes on to quote Drake as having conceded that he is building a home in his hometown of Toronto, Canada.

It is also premature to decide now whether Hebrew Hustle or Hacker derived commercial advantage from the Drake references, Pauley said.

“The minor presence of Drake on the website, coupled with the fact that when the photograph was clicked it displayed text regarding a Lil Wayne song (not a Drake song), could lead a jury to determine Drake’s use was not to counterclaim defendants’ commercial advantage,” the ruling states. “Accordingly, while Drake has adduced evidence that his likeness was likely to counterclaim defendants’ commercial advantage, he has not come forward with evidence demonstrating that there is no material issue of fact.”

Represented by attorney Anthony Motta, Hacker and Hebrew Hustle had sought summary judgment as to all four of Drake’s counterclaims against it.

Pauley shot each argument down.

Whereas Hebrew Hustle boasts “only three minor tangential connections” to Drake, the judge said “placing Drake on both the homepage and bio page could have misleadingly implied that their connection was much stronger.”

Pauley also rejected the claim “that a reasonable consumer would realize that the references to Drake merely represented the kind of music that Hebrew Hustle was involved in, not that Drake supported the company.”

“This was not a website set up to display famous musicians,” the ruling states. “It was a website meant to promote Hebrew Hustle. Therefore, a reasonable visitor to the Website may have assumed that Drake’s presence was meant to show Hacker works with Drake, and that Drake endorses Hebrew Hustle. Those visitors were likely looking for music representation and production services, and may have been enticed by seeing a celebrity that they recognized. There is no basis to assume such a customer would automatically conclude that these references were meant only to show that Hebrew Hustle works in hip-hop music.”

Neither attorney Lepera nor Motta returned emails seeking comment.

Pauley ordered the parties to appear for a status conference on May 31.

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