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Distributor Hits Drake With Libel Lawsuit After Denouncing Upcoming Concert Film

By Adam Freedman

On March 19th, the distributor of the concert movie Drake's Homecoming: The Lost Footage, reportedly served Drake with a libel lawsuit after the multi-platinum artist took to social media to publicly denounce the film only a few days before its release. (Kennedy, John. "Distributor Sues Drake for Disavowing Concert Film." Global News Distributor Sues Drake for Disavowing Concert Film. March 19, 2015. http://globalnews.ca/news/1891438/distributor-sues-drake-for-disavowing-concert-film/.) The film's distributor, Specticast, is seeking damages and a declaration from the court confirming that the film's release was authorized.

The film depicts a 2009 sold-out concert performance in Toronto. Shortly after the show, Drake was signed to Lil Wayne's Young Money label and became a global superstar. However, the issue arose on March 16th, 2015, when Drake publicly disavowed any connection with the film by tweeting: "The Drake Homecoming film is not something OVO or Drake have any part in. I feel it is my responsibility to inform and protect my fans." (Id.) Drake continued to post further tweets using the hashtag #ProtectTheFans. (Id.) Specticast alleges that Drake's statements are false, and the rapper has harmed the value of the movie by encouraging his 21 million Twitter followers to boycott its release.

According to documents obtained by the Los Angeles Times, Drake signed a contract with Serious Entertainment, the promoters of the concert detailed in movie, in which he agreed to the concert's filming alongside a $15,000 cash fee and a 15% royalty on the film's profits. (Kennedy, Gerrick. "Drake, Producers Battling over 'Homecoming' Film Days before Release." Los Angeles Times. March 16, 2015. http://www.latimes.com/entertainment/music/posts/la-et-ms-drake-producers-disputing-homecoming-concert-film-20150316-story.html.) The contract also stipulated that, should Drake's 2009 concert sell out, he would be required to play another show for $5,000. (Id.) This second show has yet to take place. (Id.)

Under this set of facts, if Specticast can produce an enforceable contract, the distributor will have a strong case for libel. New York courts have explained that, "Under New York law, the elements of a defamation claim are a false statement, published without privilege or authorization to a third party, constituting fault . . . and it must neither cause special harm or constitute defamation per se." (Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164, 169 (2d Cir. 2003).)

A statement is defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him." (Restatement (Second) of Torts ยง 566.) Furthermore, a statement can only be defamatory if it includes a statement of fact, rather than opinion. (Id.) Drake's statements here allege facts -- that he never authorized the movie -- and Specticast's actions should deter third parties from associating with the company professionally.

Secondly, publication generally requires the written communication of a libel to a person other than the one defamed. <(em>Stella v. James J. Farley Assn., 122 N.Y.S.2d 322, 204 Misc. 998 (N.Y. Sup. Ct., 1953).) New York courts have already held that social media posts satisfy the publication requirement. (Angelotti, Ellyn. "How Courtney Love and U.S.'s First Twitter Libel Trial Could Impact Journalists." Poynter. January 14, 2014.) Here, Drake's tweets communicated the relevant facts to his fans, in a matter that they understood, making them analogous to other forms of written publication.

Third, Specticast's general theory is that Drake acted recklessly in publishing these tweets; Drake had a disregard for their truthfulness. Through public statements by representatives of Specticast, the company has already speculated that Drake knows that he is wrong, and he's simply trying to strong-arm them to prevent them from showing the film. (Kennedy, John. "Distributor Sues Drake for Disavowing Concert Film." Global News Distributor Sues Drake for Disavowing Concert Film. March 19, 2015. http://globalnews.ca/news/1891438/distributor-sues-drake-for-disavowing-concert-film/.)

The biggest issue will be for the plaintiffs to actually establish a concrete amount of damages that were caused by Drake's tweets. There is no set formula for valuing one's social media followers, and it will be a difficult task to determine whether Drake's statements proximately caused anyone to avoid seeing the movie as well. However, if the statement is found to be libel per se, then they will not have to prove damages, and may be awarded general damages.

A publication is libelous per se if it tends to subject one to hatred, distrust, ridicule, contempt or disgrace, or tends to injure one in his trade or profession, or if it imputes to another conduct, characteristics, or a condition incompatible with proper exercise of his lawful business, trade, profession or office. (Iiuffine v. South Shore Press, 2012 NY Slip Op 30169 (N.Y. Sup. Ct., 2012).)

In the case of Rinaldi v. Holt, Rinehart & Winston, Inc., a New York judge sued the Village Voice and its advertising agency for libel, after a Village Voice writer included Judge Rinaldi in its article entitled "The 10 Worst Judges in New York." (Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369 (N.Y., 1977).) The court explained that the plaintiff had a strong case for libel per se, however, judges are considered public figures under New York law, therefore he must prove the additional element that the defamatory statement was published with actual malice. (Id.) Judge Rinaldi could not prove actual malice because the court determined that the article at issue was either opinion or a reasonable conclusion drawn from facts. (Id.)

Just as the statements in Rinaldi alleged that Judge Rinaldi could not serve reputably in his position, Drake's statements imply that Specticast is an unscrupulous business entity, presumably injuring Specticast in its business. Most likely, Specticast will not be found to be a public figure, nor will this be considered a matter of public concern, thereby not implicating the "actual malice" requirement. The issue of whether Drake authorized the film has no effect on the public.

The movie already premiered, so Specticast will likely pursue a negligence per se theory, due to the apparent difficulty in calculating damages. However, the case between Specticast and Drake will most likely settle, even though Drake presumably has greater financial means to survive a long drawn-out legal battle. However, the key elements of libel cases have yet to fully evolve to meet the realities of Twitter and social media, raising a host of additional questions, including:

- How will the courts determine status (who is a public figure) in the context of Twitter? What role does the number of followers play in determining this?

- What is "a matter of public concern" in the context of Twitter?

- What do the remedies for defamation look like in the age of Twitter? How can free speech be encouraged while deterring defamatory speech on Twitter?

Given that Specticast claims it can produce the original, enforceable contract, this only brings up more questions about Drake's motivation behind attacking the film. Does Drake really believe the film was unauthorized? Interestingly, Drake announced his OVO Music Festival on March 20th, and critics have speculated that this entire incident was simply intended to draw more attention around the festival.

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