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November 25, 2025
By Emily Poler
I suppose, in some way, you have to admire rapper Drake’s tenacity in pursuing his defamation lawsuit against media giant UMG Recordings, Inc., which has kept his nemesis Kendrick Lamar’s accusations of Drake being a pedophile in the public eye a year after most people have forgotten about it. Clearly he’s putting what he perceives as justice over his public image. Plus, it’s making for some interesting legal analysis, as evidenced by the recent decision in the case. As a result, I get to once again write about hip-hop diss tracks in a semi-academic tone. I love my life!
You can go back and read my prior post about the case here, but for a quick summary, between April 19, 2024 and May 5, 2024, Aubrey Drake (“Drake”) and Kendrick Lamar (“Kendrick”) dropped a combined nine diss tracks directed at each other. (Diss track: “A hip hop or rap recording intended to disparage or attack another person or group.”) In this robust exchange of ideas, Drake mocked Kendrick’s height (he’s about 5’5”; Drake claims to be six foot) and implied that Kendrick physically abused his partner. In return, Kendrick accused Drake of being a deadbeat dad, among other malefactions such as having his prominent abs manufactured through plastic surgery.
Most notably, however, in “Not Like Us,” the penultimate track (and biggest hit) in this musical back-and-forth, Kendrick rapped, “Drake, I hear you like ‘em young,” “tryna strike a chord and it’s probably A minor,” “Certified lover boy? Certified pedophile,” and “your homeboy needs subpoena, that predator move in flocks. That name gotta be registered and placed on neighborhood watch.”
These lyrics formed the basis for Drake’s complaint against UMG — Drake and Kendrick’s record label — which alleged that UMG intentionally published and promoted “Not Like Us” knowing that the song implied Drake was a pedophile, and that this accusation was false and defamatory.
UMG moved to dismiss the defamation claims on grounds that “Not Like Us” did not convey, as a factual matter, that Drake had sex with minors. Last month, U.S. District Court Judge Jeannette Vargas ruled the statements at issue in “Not Like Us” were non-actionable opinions and, in keeping with my earlier prediction, dismissed Drake’s complaint.
How did the Court reach this conclusion? By way of background, the law says only factual statements — not opinion — can serve as a basis for a defamation claim. And it’s the courts that decide whether a statement is one of fact or opinion by evaluating how a person hearing the statement might perceive it. In making that determination, courts consider: (1) whether the statement has a precise meaning; (2) whether a statement can be proven true or false (opinion cannot be proven true or false); and (3) whether the context in which the statement is made signals it as opinion or fact.
In this case, the issue is whether Kendrick’s lyrics in “Not Like Us” conveyed a false factual statement that Drake is a pedophile.
On the third point above, Drake argued that Kendrick’s statements should be viewed in isolation, and not in the context of a song. The Court rejected this, instead focusing on where the statements were made, the statements’ purpose, and the language and tone of the statements. The Court concluded, presumably rather easily, that Kendrick’s statements were made in a diss track, writing “[t]he average listener is not under the impression that a diss track is the product of a thoughtful or disinterested investigation conveying to the public fact-checked, verifiable content.”
Which is a rather fancy way of saying, SRSLY?
The Court also noted that the statements, which were part of an exchange of diss tracks, had to be considered in that context. Here, that means a reasonable person would understand the statements at issue were made in a heated dispute or a war of words to be opinion and, therefore, such statements could not be defamatory. In this context, an audience would expect hyperbole, not factual assertions. (This seems particularly true as in an earlier track, Drake challenged Kendrick to accuse him of being a pedophile.)
Drake, however, argued that the Court should ignore the overall battle context and analyze “Not Like Us” on its own, claiming that since “Not like Us” was by far the most popular song in the melee, the average listener wouldn’t be familiar with the whole back and forth and thus wouldn’t view its statements as part of a heated dispute. The Court rejected this argument, finding the statements must be viewed in context because all the songs are in conversation with one another. The Court also noted that “Not Like Us” became a massive hit because of the feud, and the extensive reporting about the conflict would have alerted listeners to the context of the statements.
What’s more, the Court found that the tone and language in “Not Like Us” reinforced the conclusion that it is non-actionable opinion, writing that the track is “replete with profanity, trash talking, threats of violence, and figurative and hyperbolic language, all of which are indicia of opinion.”
In other words, it’s a rap battle, dammit, not journalism.
Drake, unwilling to put this thing to bed and let everyone forget about it, has filed a notice of appeal. The battle rages, or at least sputters, on.
April 1, 2025
By Emily Poler
Not infrequently, I talk angry clients fired up to file defamation lawsuits out of going to court. I have a lot of reasons, but chief among them is that filing a defamation lawsuit, especially when the client is a public figure, will bring more attention to the potentially defamatory statements. Way more.
Why? For a statement to be defamatory, it has to be, among other things, false. It’s really hard (if not impossible) to prove something is false without repeatedly restating the defamatory statement. A lawsuit also allows the defendant to rebut claims that a statement is false by coming forward with proof that the statement is true, which also means constantly repeating the defamatory statement. In litigation, all this is likely to be a matter of public record, so if the plaintiff is a public figure, the defamatory statement will be repeated in the media a LOT. Which is usually the opposite of what the celebrity plaintiff wants.
All of which brings me to Drake’s defamation lawsuit against his record label, Universal Music Group (UMG), which seems like a prime example of a case where the plaintiff, a very famous Canadian rapper (you probably know that, but still), might end up doing himself more harm than good.
This case grew out of the highly public beef last year between Kendrick Lamar (an equally famous, Pulitzer Prize-winning American rapper) and Drake; for those of you who do not live with a teenager who was very eager to fill me in on the increasingly nasty verbal attacks the two artists slung at each other, here’s a brief run down.
(And yes, I do feel somewhat ridiculous to write the following in a semi-academic tone, but this is a legal blog, so here we are.)
Kendrick Lamar (“Kendrick”) and Aubrey Drake Graham (“Drake”) are both successful musicians. During 2024 each released several diss tracks, or rap songs with insults directed at the other. In a track called Taylor Made Freestyle, Drake (using an AI-generated voice meant to sound like the late rapper Tupac Shakur, but that’s a story for another day) challenged Kendrick to “talk about [Drake] likin’ young girls.”
After additional tracks back and forth in which Drake accused Kendrick of cheating on and physically abusing his fiancée, Kendrick responded with “Not Like Us,” which became one of the biggest songs of the year. To the millions of fans who followed the beef, Kendrick had thoroughly eviscerated and humiliated Drake.
In “Not Like Us” Kendrick raps, among other things “Drake, I hear you like ‘em young,” “tryna strike a chord and it’s probably A minor,” “Certified lover boy? Certified pedophile,” and “your homeboy needs subpoena, that predator move in flocks. That name gotta be registered and placed on neighborhood watch.”
Drake was none too pleased about this and, in early January, he filed a lawsuit claiming that “Not Like Us” and an accompanying music video and other materials are defamatory because he is not a pedophile, has not had sex with a minor and, in fact, has never been charged with “any criminal acts whatsoever.”
[NB: While Drake has never been charged with any crime, there are a lot of rumors about him having friendships with younger, female celebrities — some of whom were under 18 when the relationships started].
Notably, Drake brought his case against UMG, his own record label, which also owns the label that releases Kendrick’s music. Also notably, Drake did not sue Kendrick himself, presumably out of concern that he could subsequently face a counterclaim from Kendrick over Drake’s accusations that Kendrick cheated on and abused his fiancée.
Which brings us to UMG’s motion to dismiss, which it filed on March 17, 2025, and is based on two key arguments.
First, UMG argues that Kendrick’s statements in “Not Like Us” constitute “nonactionable opinion” because an average person hearing the accusations in a rap wouldn’t view them as literally true or false but would consider them hyperbolic statements made in the course of a heated exchange. In determining whether a statement can serve as the basis for a claim of defamation, courts have to look at the context in which they were made, and courts regularly find that statements such as Kendrick’s are not actionable.
Answering this particular argument will require the court to dive deeply into what was said in “Not Like Us,” along with the full context of the Kendrick-Drake beef — more deeply than is usual at the motion to dismiss stage. (Generally, on a motion to dismiss, courts only consider what’s actually in the complaint and the complaint here focuses on the specific statements without focusing on the larger context.) A deeper dive is not uncommon in defamation cases where there are serious First Amendment concerns that might chill free speech.
UMG next argues that Drake has not alleged that UMG acted with “actual malice.” In the context of a defamation case against a public figure, this means that, in his complaint, Drake has to point to evidence that UMG knew or believed at the time it released “Not Like Us” that the statements about Drake being a pedophile were false. This standard isn’t met where the party publishing the statement (UMG) believes that the statements are outrageous and/or not intended to convey facts. I think it’s likely that UMG’s release of “Not Like Us” is going to fall into this basket. Failing to dismiss the claim could lead to a world in which record labels would have to vet every diss track (plus a lot of other songs) to make sure they’re not defamatory — not a great (or realistic) outcome.
In any event, I’m curious to see how Drake responds to the motion to dismiss. My guess is that his lawyers will argue that the court shouldn’t look at all of the context around the supposedly defamatory lines in “Not Like Us” because it’s inappropriate at this stage of the litigation, and thus should reject UMG’s argument.
Stepping back from the legal points for a moment, what is Drake hoping to get from this lawsuit? His image took a pretty big hit as a result of the beef, but with the public’s mosquito-like attention span, by the time he filed the world had moved onto other things and in February Drake himself had a Billboard number one collaborative album with fellow Canadian superstar PartyNextDoor. Why keep his embarrassment at the hands of Kendrick in the public eye?
Whatever Drake is thinking, if I had to guess, this case is going to be dismissed or partially dismissed.
March 5, 2025
I’ve written a number of posts about data scraping because it’s a big deal right now. Initially, I was interested in the issue because it was pretty clear that AI companies such as OpenAI engaged in widespread extraction of data from other companies’ websites (i.e., scraping) to collect materials to create their generative AI platforms. More recently, my interest has shifted to focus more on the extent to which social media companies are trying to use their terms of service to limit or prevent others from collecting and selling their users’ data.
The interesting wrinkle: the social media platforms don’t actually own their users’ content.
First, some background: In case you’ve never thought about it (and there’s no reason for this to cross most people’s minds), when you sign up for an account on a social app like LinkedIn or X and agree to its terms of service, you give the platform a license to use your content. Generally speaking, this means that you give it the right to display, reproduce, distribute, and adapt your posts.
Why does this matter? Because the copyright to any posts vests in their creator (you) and without a license, a social media company would have to pay the creator (you again) each time a post is reproduced or displayed on the platform. The licenses users grant social media companies are non-exclusive and do not give them “ownership” over posts; they only allow the social media companies to publish the posts.
This is important for a couple of reasons. First, it gives social media platforms safe harbor from civil liability under Section 230 of the Communications Decency Act. This protects them from being sued for defamation and the like based on a user’s posts. Second, it means that the original creator retains ownership of the posts. Despite this, and as will surprise no one who has been alive over the last 20 years, social media platforms have tried to assert as much control over users’ posts as possible — often, far beyond what is actually permitted by law. And the Courts have started weighing in on this.
In a 2022 case brought against LinkedIn by a competitor that scraped LinkedIn’s data, the Ninth Circuit observed that “giving companies like Linkedin free rein to decide, on any basis, who can collect and use data — data that the companies do not own, that they otherwise make publicly available to users, and that the company themselves collect and use — risk the possible creation of information monopolies…”
More recently, a company called Bright Data Ltd. had been sued by both Meta Platforms, Inc., and X Corp. In those cases, the social media platforms alleged Bright Data violated their respective terms of service by scraping Facebook and Instagram and X and selling the information gathered to third-parties.
In neither case was the Court particularly impressed with the plaintiffs’ arguments that Bright Data should not be able to scrape their social media platforms.
In the Meta case, the Court found that Facebook’s and Instagram’s terms of use did not apply because Bright Data was not logged into an account on either when it engaged in scraping and/or had deleted its accounts before engaging in any scraping. The Court thus rejected Meta’s arguments and granted Bright Data’s motion for summary judgment.
And in the case brought by X, the Court found that X’s claims that data scraping breached its terms of use impermissibly conflicted with the Copyright Act. The Court held that “X Corp. would upend the careful balance Congress struck between what copyright owners own and do not own, and what they leave for others to draw on. In addition to giving itself de facto copyright ownership in copyrighted content that X users designated for public use, X Corp. would give itself de facto copyright ownership over content that Congress declined to extend copyright protection in the first place (e.g., likes, user names, short comments)…” As a result, the Court dismissed X’s lawsuit.
We’ll see where social media companies go in their efforts to try to keep as much of their users’ data for themselves (and their AI platforms), but the Courts have made it clear there are limits — as of now, third-party scraping of social media can continue.
October 8, 2024
Over the last few years there have been several cases of professional models suing “gentlemen’s clubs” (a/k/a strip clubs) for defamation. These suits involve the clubs grabbing the models’ pics off the Internet and using them on social media to promote their entertainment. (Weirdly, all of these suits are against strip clubs in New England. Draw your own conclusions.) None of this is particularly surprising. However, one current case has raised the interesting question of when the statute of limitations begins to run on defamation claims stemming from social media posts.
In this case, five models are suing Club Alex in Stoughton, Massachusetts, alleging the club used their photos in Facebook posts, creating the impression the models worked as dancers there. That’s defamation!
The club pushed back, noting that the offending posts were made between 2013 and 2015, but the models didn’t bring the lawsuit until 2021 — well after the three-year statute of limitations for defamation claims in Massachusetts had expired. On those grounds, the federal Court hearing the case initially granted the club’s motion to dismiss.
The models asked the Court to reconsider that decision. And, amazingly, the Court did!
Why would a federal judge basically admit, “ok, maybe I was wrong”? In a nutshell, here’s why: In some cases, Massachusetts (and most other states) use a “discovery rule” to determine when the statute of limitations starts to run. This avoids the unfairness of having statutes of limitations expire before a “Plaintiff knew or reasonably should have known that she may have been harmed by the conduct of another.” The models argued that this should also apply here because the vast ocean of information on social media meant they didn’t know (and couldn’t be reasonably expected to know) about the misappropriation of their images until years after the posts. What’s more, even if they had suspected misuse of the images, it’s very difficult to manually search thousands of strip clubs’ social media pages and websites, especially when search engines can’t search images without names.
Recognizing the models’ point, the District Court sent the issue to the Supreme Judicial Court (SJC) of Massachusetts — the highest state Court in that state — asking “under what circumstances, if any, is material publicly posted to social media platforms ‘inherently unknowable’ for purposes of applying the discovery rule in the context of defamation, right of publicity, right to privacy and related tort claims?”
The SJC held that, in the context of social media posts, a determination of when the statute of limitations begins to run should not be based on the date of publication, but rather “requires a fact-intensive, totality of the circumstances analysis to determine what the Plaintiff knew or should have known about the social media publication.” (It noted that this is not required where postings are widely available and readily searchable).
The SJC instructed judges faced with this issue to consider things like: “how widespread the distribution was;” whether the posting could be readily located by a search; if there is technology that could assist in locating potentially offending posts; and how widely the images are distributed and, thus, how hard or easy it is to separate authorized uses from unauthorized uses.
Here, this means that the models can continue to pursue their defamation claims against the club.
A final thought: In a way, this is the flipside of the Netflix case involving their series Baby Reindeer and the lawsuit against them by Fiona Harvey, which I wrote about here. In that case, the information on social media enabled Internet sleuths to out someone whose identity was meant to be concealed, whereas in this case, the volume of information on social media makes it more difficult to find out when someone’s persona is being used without their knowledge. Whichever way you look at it, one thing is certain: Controlling our identities (and our lives) is waaay harder than it used to be.
July 23, 2024
What do Baby Reindeer and Inventing Anna have in common? Sure, both are miniseries on Netflix. More interestingly, though, and more pertinent to this blog (since I’m not Roger Ebert), both are subjects of defamation lawsuits against the streaming giant. Nor is either action the first; I previously wrote about Linda Fairstein’s defamation lawsuit against Netflix over how she was portrayed in When They See Us. (That case settled in early June.)
These two current cases touch on slightly different aspects of defamation law. Inventing Anna tells the “based on a true story” of con artist Anna Sorokin, who posed as an heiress and defrauded a variety of New York institutions and individuals out of somewhere around $275,000. In addition to the protagonist, the series portrays several of her real life friends, including Rachel DeLoache Williams, the plaintiff in the lawsuit. Williams claims the series’ version of her is false and defamatory, especially in scenes showing her character abandoning a depressed Sorokin in Morocco and thus painting her as a “disloyal” and “dishonest” villain (instead of a victim who was defrauded by Sorokin to the tune of $62K).
Netflix sought to dismiss the lawsuit on grounds the allegedly defamatory statements were substantially true or were not defamatory. It argued that the show’s creators have a “literary license” to give their interpretation of events, and the characterization of Williams was an opinion, protected by the First Amendment from defamation claims.
The District Court did not see things this way and in March of this year it denied the motion finding that, at the very least, some portions of Netflix’s portrayal of Williams were false and capable of a defamatory interpretation. Specifically, the Court concluded that the issue of whether Sorokin was actually distraught in Morocco, or if that was an invention of the producers, is a question of fact that can be proven true or false. (To oversimplify things a bit, only false statements of fact can serve as a basis for a claim of defamation.) “Whether Sorokin was in a troubled state and Williams left her at that point can be proven true or false,” the judge wrote. The Court further concluded that showing the Williams character ditching a friend when she was depressed could indeed leave viewers with a negative view of the real Williams, and thus serve as the basis for a defamation claim. The case is proceeding.
In contrast, the Baby Reindeer case will focus on the question of whether the series’ portrayal of the character Martha is “of and concerning” a real-life person — the plaintiff, Fiona Harvey.
Baby Reindeer, which begins with the words “this is a true story,” was written by Richard Gadd, who also plays central character Donny Dunn, a not very funny wannabe comedian. It’s a fictionalized version of Gadd’s own life, and part of Donny’s saga involves being stalked by a character named Martha, which Gadd drew off a real experience.
According to the lawsuit, filed in early June, Harvey claims Gadd based Martha on her and cites several similarities between real life and fiction, including that both Martha and Harvey are Scottish lawyers of about the same age who live in London. The suit also claims that Harvey bears an “uncanny resemblance to ‘Martha’” (or at least the actress who plays the character), and “‘Martha’s’ accent, manner of speaking and cadence, is indistinguishable . . .” from Harvey’s.
Moreover, one plot point in Baby Reindeer (I’m trying to avoid spoilers as the show has a lot of twists and turns that would sound ridiculous if you haven’t watched it) mirrors something that Harvey tweeted at Gadd in 2014. Because of these similarities, according to the Complaint, within days of the series airing Internet sleuths determined she was the basis for Martha and began subjecting her to social media vitriol. “As a result of [Netflix’s] lies, malfeasance and utterly reckless misconduct, Harvey’s life had been ruined,” the suit states.
Harvey claims she was defamed by Netflix because Baby Reindeer portrays Martha as “a twice convicted criminal” who spent five years in prison for stalking people, as well as physically and sexually assaulting Donny. Harvey says she has never been convicted of any crime and did not attack the real-life Gadd.
The interesting issue here is that relevant case law doesn’t include, as a test, whether a fictional character can have their real-life basis be identified by Internet sleuths. Rather, the inquiry is generally whether a person who knows the plaintiff would reasonably conclude that the plaintiff was the fictional character, or in this case, whether friends and acquaintances of Harvey would link her with Martha. Netflix has been pretty adamant that it took steps to disguise the identity of the real Martha. Since there are numerous elements in the Martha character’s storyline that are clearly not connected to anything in Harvey’s real life, it seems very possible that the real Martha is someone other than Harvey. But the Internet has spoken, and that’s enough for Harvey to sue Netflix for $170 million.
We’ll have to see how all this pans out; it should make for pretty good legal viewing (although nowhere near as popular as Baby Reindeer itself, which is set to become Netflix’s most-streamed show ever).
One final note: Some people have asked me if I think there’s something wrong with Netflix’s legal vetting of shows. The answer: maybe, but let’s keep in mind that Netflix produces A LOT OF CONTENT, and obviously most of it isn’t causing trouble. That said, it seems like the streaming behemoth should start to exercise a bit more caution when greenlighting these series based on real stories, because there is a lot of money at stake, the Internet is rife with people looking to dig up the “truth,” and someone, somewhere, may very well cry defamation.
