Graham v. UMG Recordings, Inc.

District court dismisses rap star Drake’s suit against UMG Recordings alleging that rival Kendrick Lamar’s hit “Not Like Us” defamed him by calling him a “certified pedophile,” holding that “diss tracks” constitute nonactionable opinion, not factual statements.

The singer and rapper Aubrey Drake Graham, professionally known as Drake, sued UMG Recordings Inc. over UMG’s publication and promotion of the rapper Kendrick Lamar’s hit “Not Like Us” aimed at Drake. The song is one of eight increasingly vitriolic “diss tracks” released by Drake and Lamar during a 16-day “rap battle” between the two in 2024. “Not Like Us,” in which Lamar accuses Drake of being a “certified pedophile,” received critical acclaim and achieved immense commercial success. Drake’s suit against UMG alleged defamation, harassment in the second degree and violation of Section 349 of the New York General Business Law. UMG moved to dismiss.

In assessing the defamation claim, the district court explained that the issue boiled down to whether “Not Like Us” can reasonably be understood to convey a fact or an opinion that Drake is a pedophile or that he has engaged in sexual relations with minors. Three factors guided the court’s consideration in distinguishing between facts and opinion: (1) whether the specific language at issue has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances signal to readers or listeners that the statements are likely to be opinion, not fact. The district court focused on the third factor and considered (i) the forum where the communication was published, (ii) the surrounding circumstances, (iii) the tone and language of the communication, and (iv) its apparent purpose.

With respect to forum, the district court explained that “Not Like Us” is a rap diss track, which encourages a freewheeling, anything-goes writing style, as opposed to journalistic reporting. The court found that the average listener would not believe that a diss track is the product of a thoughtful or disinterested investigation, conveying fact-checked, verifiable content. Regarding the supporting circumstances, the district court noted that “Not Like Us” was released in the midst of a rap battle, which is essential to assessing its impact on a reasonable listener. “Not Like Us” was published as part of a heated public feud, in which both Drake and Lamar exchanged increasingly inflammatory insults and accusations. This is precisely the type of context in which an audience could anticipate the use of fiery rhetoric or hyperbole, rather than factual assertions. With respect to tone and language, the district court explained that “Not Like Us” could only be understood as opinion because the language employed in the diss track—including profanity, trash talk and threats of violence—are all indicative of opinion. A reasonable listener would conclude that Lamar was rapping using hyperbole, the district court found. In sum, the district court determined that a reasonable listener would not conclude that “Not Like Us” conveys objective facts about Drake, and it therefore dismissed Drake’s defamation claim.

As to the harassment claim, the district court pointed out that New York does not recognize a civil cause of action for harassment. It also held that the state’s criminal statute does not provide a private right of action for harassment, as there are no indications in the statutory scheme that the legislature intended to confer a civil cause of action for a violation of the criminal harassment statute. The court therefore dismissed Drake’s harassment claim.

Finally, regarding New York General Business Law Section 349, which prohibits deceptive business practices, the district court held that Drake’s allegations, which were based on anonymous online and social media comments, do not form a sufficient factual basis to create a reasonable expectation that discovery would reveal evidence of illegal activities. Drake provided no facts or circumstances to plausibly allege that UMG manipulated listeners into streaming “Not Like Us” instead of Drake’s music. It also found that Drake did not allege that those purportedly deceptive practices were consumer oriented.

Summary prepared by Tal Dickstein and Jennifer Kahn