Judge Releases Final Diss Track In The Drake/Kendrick Feud: Dismissing Drake’s Pathetic Lawsuit Over Not Like Us

In what may be the most legally absurd aftermath of a rap battle in hip-hop history, Drake's preposterously silly lawsuit against Universal Music has met its predictable end. The artist sued his own record label-not Kendrick Lamar himself-for the crime of also distributing Lamar's devastating diss track Not Like Us. The judge overseeing the case has now dismissed it entirely, delivering what amounts to a final judicial verse in this musical feud.

Judge Jeannette Vargas recognizes a killer song when she hears one:

This case arises from perhaps the most infamous rap battle in the genre's history, the vitriolic war of words that erupted between superstar recording artists Aubrey Drake Graham (Drake") and Kendrick Lamar Duckworth (Lamar" or Kendrick Lamar") in the spring of 2024. Over the course of 16 days, the two artists released eight so-called diss tracks," with increasingly heated rhetoric, loaded accusations, and violent imagery. The penultimate song of this feud, Not Like Us" by Kendrick Lamar, dealt the metaphorical killing blow. The song contains lyrics explicitly accusing Drake of being a pedophile, set to a catchy beat and propulsive bassline. Not Like Us" went on to become a cultural sensation, achieving immense commercial success and critical acclaim.

When you sue over a song, and the judge notes that the song has a catchy beat and a propulsive bassline, let alone dealt the metaphorical killing blow," I don't think your lawsuit is going to survive. The court dumps it while noting that just because randos commenting on social media now call Drake a pedophile based on the song, that doesn't make the song defamatory:

The Court holds, based upon a full consideration of the context in which Not Like Us" was published, that a reasonable listener could not have concluded that Not Like Us" was conveying objective facts about Drake. The views expressed by users @kaioken8026, @mrright8439, and @ZxZNebula, and the other YouTube and Instagram commentators quoted in the Complaint, Am. Compl., 73-74, do not alter the Court's analysis. In a world in which billions of people are active online, support for almost any proposition, no matter how farfetched, fantastical or unreasonable, can be found with little effort in any number of comment sections, chat rooms, and servers. [T]hat some readers may infer a defamatory meaning from a statement does not necessarily render the inference reasonable under the circumstances." Jacobus, 51 N.Y.S.3d at 336.

The artists' seven-track rap battle was a war of words" that was the subject of substantial media scrutiny and online discourse. Although the accusation that Plaintiff is a pedophile is certainly a serious one, the broader context of a heated rap battle, with incendiary language and offensive accusations hurled by both participants, would not incline the reasonable listener to believe that Not Like Us" imparts verifiable facts about Plaintiff

The judge actually does a fairly complete and detailed history of the war of words between Drake and Kendrick, even explaining the nature of the insults that pass back and forth between the two. Here's just one paragraph of that section, but if you weren't full up on the beef, now you can catch up:

Lamar fired back at Drake in Euphoria," which was released on April 30, 2024. Req. J. Not. at 3. In the track, Lamar claims, I make music that electrify em, you make music that pacify em" and that he would spare [Drake] this time, that's random acts of kindness." Req. J. Not., Ex. K. He accuses Drake of fabricating his claims: Know you a master manipulator and habitual liar too/But don't tell no lie about me and I won't tell truths bout you." Id; see also Am. Compl., 14, 77. He insults Drake's fashion sense, Req. J. Not., Ex. K (I hate the way that you walk, the way that you talk, I hate the way that you dress"), further raps I believe you don't like women, it's real competition, you might pop a** with em," and taunts Drake for being a coward with his responses, id. (I hate the way that you sneak diss, if I catch flight, it's gon' be direct.")

Of course, in any defamation case, there can be fights over whether or not statements are facts (which can be defamatory) or opinion (which can't be defamatory). Drake's legal team had tried to argue that the question of whether the statements in Not Like Us were fact or opinion was a question of fact for a jury. But that's not how that works. It's a question of law that judges decide in most cases:

Whether a challenged statement is fact or opinion is a legal question. Celle, 209 F.3d at 178. Plaintiff argues that it is inappropriate for the Court to determine, at the pleading stage, whether a reasonable listener would perceive the Recording as fact or opinion. Opp'n Br. at 13-14; Hr'g Tr. at 24:11-26:8. Yet, because this is a question of law, New York courts routinely resolve this question at the motion to dismiss stage. See, e.g., Brian v. Richardson, 87 N.Y.2d 46, 52 (1995) (holding, on a motion to dismiss, that challenged statement constitutes opinion); Dfinity Found. v. New York Times Co., 702 F. Supp. 3d 167, 174 (S.D.N.Y. 2023), aff'd, No. 23-7838- cv, 2024 WL 3565762 (2d Cir. July 29, 2024) (Whether a statement is a fact [or] opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean' and is appropriately raised at the motion to dismiss stage."); Greenberg v. Spitzer, 62 N.Y.S.3d 372, 385-86 (2d Dep't 2017) (holding that, because whether a statement is defamatory presents a legal issue to be resolved by the court," defamation actions are particularly suitable for resolution on a motion to dismiss). There is particular value in resolving defamation claims at the pleading stage, so as not to protract litigation through discovery and trial and thereby chill the exercise of constitutionally protected freedoms." Dfinity Found., 702 F. Supp. 3d at 173 (cleaned up); accord Biro, 963 F. Supp. 2d at 279.

Also, in defamation cases, the context of the speech always matters quite a bit. And here, the context is a rap battle. The judge points out how silly it is to go to court just because you got dissed too hard:

This is precisely the type of context in which an audience may anticipate the use of epithets, fiery rhetoric or hyperbole" rather than factual assertions. A rap diss track would not create more of an expectation in the average listener that the lyrics state sober facts instead of opinion than the statements at issue in those cases.

For example, in Euphoria" Lamar calls Drake a master manipulator and habitual liar" and a scam artist." Req. J. Not., Ex. K. Drake responds in Family Matters" by heavily implying that Lamar is a domestic abuser. See id., Ex. M. He also raps that he heard" that one of Lamar's sons may not be biologically his. Id. (Why you never hold your son and tell him, Say cheese'?/We could've left the kids out of this, don't blame me/. . . I heard that one of em little kids might be Dave Free").

In Meet the Grahams," Lamar takes issue with Drake involving his family members in their feud. Req. J. Not., Ex. N (Dear Aubrey/I know you probably thinkin' I wanted to crash your party/But truthfully, I don't have a hatin' bone in my body/This supposed to be a good exhibition within the game/But you f***ed up the moment you called out my family's name/Why you had to stoop so low to discredit some decent people?"). In that same track, Lamar alleges that Drake uses the weight loss drug Ozempic. Id. (Don't cut them corners like your daddy did, f*** what Ozempic did/Don't pay to play with them Brazilians, get a gym membership."). Lamar also insinuates that Drake knowingly hires sexual offenders. See id. (Grew facial hair because he understood bein' a beard just fit him better/He got sex offenders on ho-VO that he keep on a monthly allowance.").

While Drake argued that the judge should ignore the other songs in the battle, the judge knows that's not how any of this works:

Plaintiff argues that the Court should ignore the songs that came before and assess Not Like Us" as a singular entity." Hr'g Tr. at 39:14-15; see also Opp'n Br. at 15-17. Plaintiff argues that the average listener is not someone who is familiar with every track released as part of the rap battle before listening to the Recording. Hr'g Tr. at 32:17-33:2; 35:9-19. Because the Recording has achieved a level of cultural ubiquity" far beyond the other seven songs, Plaintiff contends that Court should not consider those other tracks in assessing how the average listener of the Recording would perceive the allegations regarding Drake. Hr'g Tr. at 36:10- 19; id. at 39:11-17; see also Opp'n Br. at 15.

There are a number of flaws with this argument. Not Like Us" cannot be viewed in isolation but must be placed in its appropriate factual context. Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 254 (1991) ([S]tatements must first be viewed in their context in order for courts to determine whether a reasonable person would view them as expressing or implying any facts."). Here, that factual context is the insults and trash talking that took place via these diss tracks in the days and weeks leading up to the publication of Not Like Us." The songs released during this rap battle are in dialogue with one another. They reference prior songs and then respond to insults and accusations made by the rival artist. See, e.g., Am. Compl., 63. The songs thus must be read together to fully assess how the general audience would perceive the statements in the Recording. See, e.g., Celle, 209 F.3d at 187 (holding that two newspaper articles had to be read together to understand full context).

Also, the judge points out that part of the reason the song was so famous in the first place was because of the wider rap battle:

Additionally, it was not just the Recording which gained a cultural ubiquity, but the rap battle itself. In deciding this motion to dismiss, the Court need not blind itself to the public attention garnered by this particular rap battle. The Court takes judicial notice of the extensive mainstream media reporting that surrounded the release of Not Like Us" and the associated feud between Drake and Lamar.

Then there's the incoherence of Drake claiming that UMG was liable (remember, Kendrick was not a defendant here) because it kept republishing" the song as it got more and more popular. But, as the judge notes, the later popularity of the song should have no impact on whether or not the song is defamatory (and it's not):

Plaintiff counters that, even if the Recording was protected opinion at the time of its initial publication, UMG's republication of Not Like Us" in the months following, after it achieved unprecedented levels of commercial success, exposes it to liability. Hr'g Tr. at 37:20-38:17. This argument is logically incoherent. If the Recording was nonactionable opinion at the time it was initially produced, then its republication would not expose UMG to liability. Republication cannot transform Lamar's statement of opinion into UMG's statement of fact

There were other arguments Drake made in there as well, but they all fared about as well as Drake did in his rap battle with Kendrick.

The end result is that the case is dismissed. And, I gotta say, when you lose a rap battle so hard that your lawsuit over it is dismissed with a judge praising the catchiness of the song that went viral... that seems like you've lost that rap battle harder than anyone has ever lost a rap battle.