A short excerpt from Judge Jeannete Vargas’s long opinion in Graham v. UMG Recordings, Inc.; read the full opinion for more:

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.

Here are the relevant lyrics quoted from “Not Like Us,” though there were more songs quoted from the rap battle:

Say, Drake, I hear you like ’em young
You better not ever go to cell block one

To any b**** that talk to him and they in love
Just make sure you hide your lil’ sister from him
They tell me Chubbs the only one that get your hand-me-downs
And PARTY at the party, playin’ with his nose now
And Baka got a weird case, why is he around?
Certified Lover Boy? Certified pedophiles

Wop, wop, wop, wop, wop, Dot, f*** ’em up
Wop, wop, wop, wop, wop, I’ma do my stuff
Why you trollin’ like a b****? Ain’t you tired?
Tryna strike a chord and it’s probably A-Minor

Back to the opinion excerpt:

Both Drake and Kendrick Lamar have recording contracts with Defendant UMG Recordings, Inc. (“UMG” or “Defendant”). Drake alleges that UMG intentionally published and promoted “Not Like Us” while knowing that the song’s insinuations that he has sexual relations with minors were false and defamatory.,,,

[I.] Defamation Claims

… The issue in this case is whether “Not Like Us” can reasonably be understood to convey as a factual matter that Drake is a pedophile or that he has engaged in sexual relations with minors. In light of the overall context in which the statements in the Recording were made, the Court holds that it cannot.,,,

The forum here is a music recording, in particular a rap “diss track,” with accompanying video and album art. Diss tracks are much more akin to forums like YouTube and X, which “encourag[e] a freewheeling, anything-goes writing style,” than journalistic reporting. The 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….

The fact that the Recording was made in the midst of a rap battle is [also] essential to assessing its impact on a reasonable listener….

That the Recording can only reasonably be understood as opinion is reinforced by the language employed in the song. “Loose, figurative or hyperbolic statements, even if deprecating the plaintiff” and “imaginative expression” cannot constitute actionable defamation….

[II.] Second Degree Harassment

New York does not recognize a civil cause of action for harassment. Notwithstanding this precedent, Plaintiff attempts to bring a claim for harassment under section 240.26(3) of the New York Penal Code. A person commits harassment in the second degree when they hold the “intent to harass, annoy or alarm another person” and “engage[] in a course of conduct or repeatedly commit[] acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” Plaintiff alleges that the Recording, Video and Image “individually and collectively provide a call to target Drake, including through violence,” and that Defendant’s “course of conduct in publishing specific and unequivocal threats of violence has placed Plaintiff in reasonable fear of physical harm.” This state criminal statute does not provide a private right of action, however. Accordingly, Plaintiff fails to state a claim for harassment….

[III.] New York General Business Law Section 349

Plaintiff’s final cause of action, brought under section 349 of New York General Business Law (“GBL”), fares no better. Section 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” Plaintiff alleges that, “on information and belief,” Defendant “engaged in deceptive acts and practices in the conduct of business, trade, and commerce by covertly financially incentivizing third parties—including music platforms and social media influencers—to play, stream, and promote the Recording.” …

While these covert practices of providing financial incentives to undisclosed third parties and leveraging of business relationships, if they exist, may be facts that are “peculiarly within the possession and control of” UMG, Plaintiff’s allegations —based on what boils down to unreliable online commentary—do not form a “sufficient factual basis such that there is a ‘reasonable expectation that discovery will reveal evidence of illegality.’” Ultimately, Plaintiff fails to provide any facts or circumstances that would make it “highly plausible” that UMG conducted such covert business tactics.

Even if the Court accepted Plaintiff’s pleadings on information and belief, Plaintiff still has not stated a claim for relief under section 349. Plaintiff has not sufficiently alleged deceptive practices that are consumer oriented. “Under New York law, the term ‘consumer’ is consistently associated with an individual or natural person who purchases goods, services or property primarily for personal, family or household purposes.” …

The Amended Complaint does not indicate how any of the deceptive practices allegedly utilized by UMG harmed consumers. For example, the Amended Complaint does not allege that consumers paid more than they otherwise would have for a product, purchased a product that they otherwise would not have because of misrepresentations regarding the product, or otherwise received less in value for any purchases that they did make….

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