Drake Steps Toward Trial in Lawsuit Over His Likeness Rights

The artist claims a publisher/management company used his photo and name on its website without permission or a license.
Getty Images

Drake is one step closer to trial in a lawsuit over the unauthorized use of his name and likeness — and it could see the "Hotline Bling" artist put a price tag on exactly how much he thinks those rights are worth.

The estate of James Oscar Smith and publisher/management company Hebrew Hustle sued the artist and Cash Money Records in 2014, claiming his song "Pound Cake/Paris Morton Music 2" infringed on the 1982 spoken-word recording "Jimmy Smith Rap." Last May, Drake beat that claim on fair-use grounds.

Before an appeals court can evaluate that ruling, the artist's counterclaims against Hebrew Hustle and its founder, Stephen Hacker, take center stage — and Drake's suit is one step closer to trial after a New York federal judge Tuesday denied dueling motions for summary judgment. 

The singer's claims include false endorsement, violation of his publicity rights and unfair competition. The allegations arise from a photograph of Drake with Lil Wayne and Birdman that was posted to Hebrew Hustle's website and a reference to him in Hacker's online bio that said, “Stephen has 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.” (That line has since been deleted.)

Drake says Hacker's clients never wrote or produced music for him, and the site didn't have his consent, a license or other permission to use his name and likeness.

The artist moved for summary judgment on his right of publicity claims, and the counterclaim defendants moved for summary judgment as to all of the claims. U.S. District Judge William H. Pauley III on Tuesday denied both motions. 

Hebrew Hustle and Hacker had argued that Drake's claims based on California law should fail because he didn't allege he's domiciled in the state. Pauley found that the artist's initial pleading that alleged residence rather than domicile is "much ado about nothing" because "four years of intervening discovery have corrected Drake's pleading error." Although, just because Pauley believes the artist pleaded that he's domiciled in the state doesn't mean Pauley's convinced the artist has established the fact. (More on that later.)

They also argued that Drake's federal false endorsement claim fails because Hacker's reference to the artist wasn't false or misleading and wouldn't confuse a consumer into thinking he endorsed Hebrew Hustle. Pauley finds the use of Drake's photo and the reference to Hacker playing a "heavy hand" in creating hits for him could lead website visitors to assume Drake endorsed the company and it's an issue best left to a jury. 

Both sides moved for summary judgment on the right of publicity claims. Pauley finds that Drake has clearly established defendants used his identity without consent, but that the question of whether they benefitted commercially should be answered by a jury.

Hebrew Hustle and Hacker had argued in a February filing that Drake shouldn't be allowed to provide any evidence related to the commercial value of his name and likeness because his answers to interrogatories implied he would only be seeking damages in the form of recovery of defendants' profits. 

Pauley didn't agree. "This motion is denied, as Drake never waived any category of damages," he writes. "In his Counterclaims, Drake asserted that he 'suffered injury and actual damages in an amount to be proven at trial.'"

Drake's motion for summary judgment also fails because Pauley isn't convinced he has proved California, not Toronto, is his home. He notes that the artist has refused to produce documents in discovery regarding his residences in the U.S. and Canada, as well as his driver's licenses and tax returns.

Read the full opinion below.