Can Drake Win His Appeal Over Kendrick Lamar’s ‘Not Like Us’? Experts Explain How He Might Revive Lawsuit

Drake is appealing after a judge dismissed his defamation lawsuit against Universal Music Group (UMG) over Kendrick Lamar’s diss track “Not Like Us” — and some legal experts think it could be a closer case than one might expect.

The appeal, filed last week, will seek to revive Drake’s case, which claimed that UMG defamed him by releasing lyrics that called him a “certified pedophile.” A judge tossed the case out last month, ruling that listeners would think Lamar was just lobbing hyperbolic opinions, not hard facts.

For many casual observers, the reaction to Drake’s decision to appeal was some version of the law of holes: If find yourself in one, stop digging. After taking a reputational hit from filing a lawsuit during a rap beef, and then quickly losing that case in court, why drag it out any further?

Because, some legal experts say, a court of appeal might be more open to siding with Drake than the court of public opinion. “I think there’s actually a good argument that ‘pedophile’ wasn’t meant metaphorically here,” says Benjamin C. Zipursky, a professor at Fordham Law School and an expert in defamation law.

Much of Judge Jeannette A. Vargas‘ ruling against Drake turned on context — that Kendrick’s lyrics came amid a “war of words” in which fans had seen repeated “inflammatory insults” from each side. In that setting, and within the art form of battle rap more generally, the judge said listeners would likely view the pedophile line as just one more “hyperbolic vituperation” rather than the kind of “sober facts” that could be proven true or false.

On appeal, Drake’s lawyers are likely to argue that Vargas got lost in that context-heavy approach and missed the actual reality of the case: That even if it came during a diss track, Kendrick accused Drake of a very specific type of wrongdoing. And some experts say that might gain traction at an appeals court.

“Is that a verifiable statement? Of course it is,” Zipursky says. “As opposed to calling somebody a ‘fascist’ or a ‘sh-thead’ or claiming they don’t love their family, the statement that ‘X is a pedophile’ falls more on the verifiable, falsifiable side. And that’s clearly what Drake’s lawyers are going to push.”

Zipursky stresses that Vargas had done an “artful” job crafting her ruling, taking into account layers of legal precedent and serious concerns about a chilling effect on free expression from letting a rich celebrity sue over art. But when dealing with the almost metaphysical complexity of speech law, he says an appeals court might still see things differently.

“If I were Drake’s lawyers, I would absolutely try to pull apart some of these context issues,” Zipursky says. “I’d ask why it’s fine for rap musicians to tell lies about each other’s criminality when there’s nothing in New York law that says that.”

Another way for Drake’s lawyers to frame those issues could be to argue the case was simply tossed too soon. Judge Vargas dismissed the case on a so-called motion to dismiss — meaning at the earliest possible stage of a case. Under that rule, she said that even if Drake proved all his lawsuit’s defamation allegations were factually true, he still couldn’t win the case because the law itself was against him.

For Marina V. Bogorad, a veteran entertainment litigator at Munck Wilson Mandala LLP, that ruling smacks of blanket immunity for any statement made in the context of a diss track, even an accusation of heinous conduct that would obviously be defamatory if false.

“The statement on its face accuses Drake of a serious crime,” Bogorad says. “To find that you can lace rap songs with facially libelous statements with impunity as a matter of law is quite a holding.”

Of course, none of this means Drake’s appeal is a slam dunk. Other legal experts had predicted to Billboard that the case would be dismissed for exactly the reasons later cited by Judge Vargas. And scholars versed in hip hop also came out against the case, arguing that Drake’s effort to treat rap lyrics literally was both legally faulty and potentially dangerous.

But reasonable legal minds can differ on something as complicated and nuanced as free speech and defamation — and Bogorad says the appeals courts might think Judge Vargas should have waited and allowed more discovery into the facts of the case, including into the falsity of the claim or how actual listeners understood Kendrick’s lyrics.

“Whether or not someone is a ‘certified pedophile’ is certainly a fact capable of being disproved,” Bogorad says. “It remains a question for the [appeals court] whether rappers have an instant immunity from these kinds of inquiries.”