Drake, Google, and Dobbs: Trademark and Data Privacy Law in the 21st Century

Drake and 21 Savage are being sued by Vogue’s Condé Nast for promoting their album “Her Loss” using its brand. Where does trademark law draw the line between art and commerce? Google recently agreed to a $392 million privacy settlement with 40 states for unauthorized location tracking practices. What is the role of tech giants in confronting personal privacy concerns in the 21st century? After the critical overturning of Roe v. Wade in June, prosecutors from Nebraska became the first law enforcement agency to use private Facebook data in a case against a teenager accused of having an illegal abortion. How should women and individuals think about their medical privacy and better protect one’s online footprint in an increasingly digitized and data-focused world?

The Harvard Undergraduate Law Review had the chance to sit down with Ms. Kat Delos Reyes to discuss the current legal climate surrounding trademark law, data privacy, and the future of medical privacy post-Dobbs. Ms. Delos Reyes is an associate at the Boston-based law firm Burns & Levinson. She focuses her practice on Copyright, Trademark, and Data Privacy matters. Before joining the Firm, Kat worked at Boston Children’s Hospital, where she helped doctors and researchers collaborate with industry partners and academic medical centers on clinical trials. During law school, Kat interned with the Honorable Susan Illston of the U.S. District Court for the Northern District of California, the Civil Rights Unit of the U.S. Attorney’s Office for the District of Massachusetts, and the Kraft Group, where she worked on professional sports deals. She also provided trademark counseling to entrepreneurs as a Student Attorney and Teaching Assistant at Northeastern University’s IP CO-LAB law clinic, and was a member of Northeastern University’s law review.

This interview was conducted in the Fall of 2022. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): Before we begin, MDR, could you give us a brief introduction to what you do and how you developed a passion for this field of law, considering other options?

Ms. Delos Reyes: My name is Kat Delos Reyes. I'm an associate at Burns and Levinson, a Boston-based full-service firm, where I focus my practice on trademark, copyright and data privacy. Before going to Burns and Levinson, I worked at Boston Children's Hospital, where I negotiated clinical contracts, primarily with pharmaceutical companies and other hospitals. It was really inspiring to see the work people were putting in to find solutions to illnesses impacting our world’s youngest patients. Fortunately, I still see a lot of that passion with the clients my firm works with!

I love what I do because I get to connect with entrepreneurs who are brimming with exciting new ideas but perhaps need additional support in navigating the legal landscape. To be honest, I became a lawyer because I’ve always been the one to solve problems for my friends and family – both a curse and a blessing. I luckily get to blend my knack for problem-solving with my curiosity about innovation and the unknown. It definitely works to my advantage here and is one that I’ll continue to harness as my career progresses in this exciting and dynamic practice area.

HULR: Going off that, IP law and data privacy are very pertinent and fascinating topics. How did you develop your passion and expertise in the field?

MDR: Data privacy was introduced to me in my first year of law school by Torts Professor Woodrow Hartzog who also happens to be a very well-known data privacy scholar. He was so passionate about the subject that he would find ways to slip in data privacy whenever possible. It’s definitely interesting and relevant to my practice now to think about data privacy law from an angle that looks into how it impacts businesses.

Exposure to the topic in that 1L class piqued my curiosity, so I just kept following that interest. At the time, everyone was talking about GDPR and how such a regulation might impact data privacy laws in the US. Then people began to fret or rave about the CCPA. A lot was changing so it wasn’t hard to keep track of what industry experts were most excited and concerned about in the data privacy world.

However, I think my curiosity really truly took off when I took an information privacy class with Professor Woodrow Hartzog where we delved into how data privacy laws and regulations might influence technologies that impact our lives, such as the use of cell phone towers to collect location data or surveillance technologies based on facial recognition. Such topics aren’t too relevant in my practice as a data privacy lawyer today, but they do inform my understanding about how our world is increasingly impacted by data privacy laws and regulations.

HULR: That's great. So one of your areas of expertise is in trademark law, you talked about the rise of technology, and it's undoubtedly become increasingly important for things such as trademark infringement, false advertising, misrepresentation, and such. So we'll get right into the most recent popular culture example. So, in Drake and 21 Savage versus Vogue. Just a little background, two artists used the Vogue cover magazine to publicize their latest album 'Her Loss.'

And actually, a recent Harvard Law School professor could comment on it. And they highlighted the line between art and commerce, in which artists will attempt to defend trademarks for artistic purposes. So, where do you see the fine line between trademark infringement and creative expression?

MDR: That's a good question. One thing that courts consider is whether there's an intent to commercially exploit the work that you're borrowing from. While that's not the only factor that a court might consider, it's a significant one that's likely being considered in the Drake issue. For instance, if a high school student had an art project where they produced a Vogue Magazine similar to what Drake and 21 Savage did–a judge might look at that more favorably and be inclined to think it was produced for a non-commercial purpose. But someone like Drake with immense starpower and influence will have to work much harder to fight the assumption that he’s using Conde Nast’s Vogue brand for his own commercial exploitation.

Regardless of whether the court does consider Drake and 21 Savage’s use of the Vogue brand as ‘art’, the court is also going to need to see if there’s a likelihood of confusion. That question asks: are consumers like us likely to confuse the source of Drake’s magazine cover with Conde Nast who actually owns a trademark registration for the Vogue trademark? So, in the end, a judge’s determination that a parody is art does not end the discussion about whether there is trademark infringement or not because it also matters if consumers are confusing the source. If you look at the complaint filed by Conde Nast against Drake and 21 Savage, you’ll see that Conde Nast’s counsel cited all sorts of statements from Tweets and whatnot that demonstrated consumers were indeed confused about whether Drake’s Vogue magazine cover was produced by Conde Nast or not.

Even though art often involves imitation– as both a trademark lawyer and a person that occasionally gets creative– I wouldn’t be happy if someone used my brand that I had worked hard to develop without my consent. Drake sidestepped around the issue by proceeding to release an imitation of the Vogue magazine without consulting with Conde Nast, where he could’ve had his lawyers obtain a license from Conde Nast to use their brand. That would probably come at a financial cost, sure but it seems a whole lot simpler than having to deal with a lawsuit, right?

HULR: That's interesting. You mentioned that it wouldn't have as much scale if it were like anyone else, maybe like an art student doing this. We want to touch upon the idea of fan culture and publicity. How do those things play into this case? And have you seen the leverage of having these big names used in other cases to stretch the bounds of trademark, if that makes sense?

MDR: That’s a very interesting thing to consider. Under federal trademark law, trademarks deemed to be “famous” are entitled to extra legal protection. Examples would include Coca-Cola, McDonalds, and Nike. Companies with big brands like Nike are likely to be very diligent with the enforcement of their trademark. Unbeknownst to many, I’d assume, a trademark registration is not guaranteed to last forever. In order to maintain your trademark rights, you would need to constantly monitor the marketplace to ensure that others aren’t infringing or misusing the use of your trademark and continue demonstrating that you are using your trademark in commerce.

An example of a big brand trying to stretch the bounds of trademark could be found in the Hermes v. Mason Rothschild case, where Hermes filed suit against an artist because that artist had begun to sell fuzzy-looking Birkin bags in NFT form under the moniker Meta Birkins. Rothschild countered by claiming that their creation and sales of Meta Birkins NFTs should be conceived as art.

Though it’s not the only trademark case involving a big brand within the web3-metaverse-nft space of digital assets, this is a case that could set a precedent for how big brands should monitor and police their brands within that ever-evolving world. It speaks volumes and has maybe influenced companies to begin to file trademark applications to secure trademark registrations of their brands in the digital asset space before an infringer or even another artist like Mason Rotschild could come into the space first.

HULR: That line is so gray to distinguish between art — whether I'm doing it as an artistic expression or taking their trademark. In your experience, which side of the court is they typically on? Do they usually side with artistic expression, or do they side with infringement and unauthorized use?

MDR: I think it depends on who's involved. It’s also very fact dependent.

Going back to our Drake and 21 Savage discussion, if Drake was a relatively unknown indie star in Cambridge who released his imitation Vogue magazine to his college spoken word group, the court would be looking at a completely different set of facts than what it is facing today with Conde Nast. If the Cambridge version of Drake would be able to persuade a judge that his use was non-commercial and that he used Conde Nast’s trademark to create art, a judge might favor Drake.

HULR: This has also been one of our first exposures to cases in trademark law because, like the things we hear in the news, they're more often tilted towards the side of constitutional law, like fundamental rights. So, we wondered what you thought about the significance of developing the field and how that's exposed to the public. Or, why is it that we hear less about copyright and trademark law compared to other ones or other cases?

MDR: That's an excellent point. I actually think that we hear about copyright and trademark infringement more often than we’d assume so, but never to the point where masses make a commotion as loud as they would about fundamental rights, which could affect one’s day-to-day. We often hear about big artists like Olivia Rodrigo allegedly copying bands like Paramore. I actually think that people understand the gist of IP, even if people say they don’t– because people understand how stealing works and that people want to protect what they own so that doesn't happen! Plus you can easily hear, see, observe a play, movie, or song and judge for yourself as to whether you think it involves infringement. You don’t need to play an instrument or attend Julliard to have a ‘basic’ position on whether Olivia Rodrigo copied Paramore’s song “Misery Business” in “Good 4 U”– but you don’t necessarily need to care since it doesn’t impact your livelihood or idea of what society should be or look like.

But when it comes to issues that impact fundamental rights like abortion, reproductive justice, religion, or same-sex marriage, people tend to differ in opinion and may feel uncomfortable about agreeing to a reality other than what they’d prefer. Regardless of whether people are loud about the issues, people are likely to be opinionated and feel that they are truly entitled, by the social contract of the country, to certain things like the freedom to religion, the right to say or show whatever they’d like on social media or get an abortion. I think these issues rightfully have more volume than those of copyright and trademark ilk.

Creators of all kinds of media work hard to produce their works of art and innovation and it’s important to our society that we continue doing that! However, other than maybe helping you through grief, heartbreak, or some kind of human condition, it doesn’t have a monumental impact on an entire community’s likelihood or likelihood to survive and be healthy. It isn’t one that is immediately and tangibly felt by the masses in a way that could be detrimental.

In terms of developing consumer understanding about this field –unless you’re a business owner or a person whose world revolves around media, I think you can live in this world without knowing a thing about IP and turn out okay. I say this with my firm’s clients in mind who are committed and care deeply about establishing their brand amongst consumers by maintaining their presence as a business both nationally and globally. I also say this with my writer and musician friends in mind who dislike the legal and business aspect of creating art, but understand that making a living off it might require knowing a thing or two about where their IP rights lie. As we jump into new worlds like the metaverse and begin to acquire digital assets, I think it'll become more of a duty for the everyday person to understand the general concepts around IP and data privacy.

HULR: Are there industries that take trademark law more seriously than others, for example, the music industry versus maybe the media and entertainment industry?

MDR: I think trademarks are important to any venture that wishes to establish and solidify its identity, but I do think the luxury industry, regardless of the type of good, is exceptionally stringent and top of maintaining the strength of their trademark portfolios. Why? People make purchasing decisions all the time based on trademarks affixed to the goods or associated with the services! I don’t always buy luxury items but when I do, I know that the splurge was partly made because of how I perceive the brand. For example, that red on the sole of a pair of heels is the reason why people splurge on Louboutins versus a different pair of heels for perhaps a lower price. You not only see this with luxury apparel and shoes, but with cars, gadgets, wine, as any luxury brand that prides itself on its reputation has so much to gain from protecting its trademarks, and of course so much to lose if its trademarks are damaged in the eyes of their consumers.

HULR: Great. We talked a lot about the rise of social media and technology. And with that comes many connections, data, and privacy issues. If we take a step away from the domestic sphere, we want to discuss data privacy. Should there be an equivalent of the GDPR in the United States and is the country moving more towards state-regulated data privacy or federally regulated, generally speaking?

MDR: So, that's also a question that many people are disputing because, currently, the state of data privacy in the United States is that it's fragmented. There are different agencies overseeing the collection of data for different industries or purposes. For example, we have the Department of Health and Human Services and HIPAA for patient health information. There's the FTC which often handles items related to data privacy when it’s related to unfair competition and deceptive practices under Section 5 of the FTC Act but also the collection of data for financial services for the Graham Leach Bliley Act. Certain states like Illinois that regulate the collection of specific types of personal information biometric data. I haven’t told you about the rest of what exists but it truly sounds and looks like a maze.

Now, while I admire the GDPR from a personal level because of its belief that privacy is a human right, I’m not sure where I am positioned in terms of having a federal privacy law yet. As more and more states like California, Virginia and Colorado adopt comprehensive data privacy laws, it definitely seems that we are heading that direction. I have also heard interesting points about how a federal privacy law would bolster national security. Recently, with the Dobbs decision, the privacy of health-related records relating to reproductive health has also come under fire as being in need of better protection. In time, I think we’ll reach a point where we’ll have a better view of where this will land, but I think we are getting close and technology might even push us to form an opinion sooner than we’d expect.

HULR: Definitely. Data is not just your social security number or government documents; it's everything on social media. People say that big tech giants know more about you than you know about yourself.

Recently Google agreed to a 392 million privacy settlement with 40 states for unauthorized location tracking where they essentially said that they were not tracking consumer location, but actually, they were. So, where do you see the role of big tech giants, such as Google, Apple, Amazon, and Facebook, in confronting these privacy concerns?

MDR: They definitely have a role as they are the ones who understand how they are pushing the bounds of their technologies, but I don't necessarily think they should be driving it by themselves. Consumers or the users of such technologies also deserve a say in confronting their privacy concerns, largely due to the fact that they are the ones typically raising these issues. A tech giant will be better equipped to improve their technologies if they are constantly troubleshooting and addressing mishaps reported by consumers who are not simply steeped in how effective a product works, but are concerned about how it could reveal sensitive data, information about minors, or any bit of information that a person might consider private. I think we are entering an age where tech companies, like Apple, are realizing there are reputational benefits to listening and addressing consumer concerns.

HULR: Interesting. So, do you think the concern that many people have, like with maybe YouTube ads or advertisement that caters to your interests or data online? Is that concern valid, and should there be regulations that force these tech giants to disclose their information?

MDR: I think people should be able to make informed decisions about how much they should disclose and when using new gadgets or in any situation where they might share data. That’s something that GDPR tries to do with its consent requirements and one that will continually adapt and change as technology does too.

HULR: Sure. So, we talked a lot about these personal rights to privacy, and we want to talk about the recent overturning of Roe v. Wade, which has brought much debate. There's the side of the story that not many people talk about, which is the role of data privacy and women's health and medical privacy. So, even though this might be a bit of a politically charged question, what are your views about the right to privacy, and does it relate to any areas within data privacy law?

MDR: I think the reversal undercuts the right to privacy in numerous ways. In terms of how that intersects with technology and companies’ reactions, it's certainly reassuring to see that many companies have acted and made it easier for people to encrypt or better safeguard their data relating to reproductive health. It’s no surprise that women have been tracking their reproductive health with their smart devices and how that data is now vulnerable to being used against their owners. This is an example of how the tech sector has reacted to a legal decision and has made efforts to protect data regardless. At the same time, state AGs have also increased pressure on companies like Apple to protect that data. These efforts are coming from all angles, and it’s clear in this instance how tech plays a part.

HULR: In early August, prosecutors from Nebraska became the first law enforcement agency in the US to use private Facebook data to support a case against a teenager accused of having an illegal abortion. So especially with the overturn of Roe v. Wade, where do you see the relationship between large companies such as Google and Meta being part of the legal process of using evidence for these very personal situations?

MDR: Privacy agreements tend to leave a carve out for companies to disclose personal data if ordered to by a court or for a government investigation, so this isn’t out of the ordinary to have happened. I don’t have much experience as to a tech company’s leverage against law enforcement in these situations, but it is understandably concerning for any layperson who doesn’t read privacy policies and understands that this is a common carveout, or really, any person who feels a certain way about how the data was used.

HULR: Another law school professor said that the tech industry is built on the idea that your data is one of your most precious commercialized resources. Do you agree with the idea that personal data is a precious resource? Are there ways for individuals to better protect their online footprint?

MDR: Hmm, I can’t say I agree at this point! Even though I spend most of my time staring at a screen, I still very much value my life offline and think my identity is largely based on what I feel and see offline. But I do recognize that my data, including what I create online with social media, is increasingly linked to my identity or plays some part of how I am perceived by others. I may be more likely to agree if we head deeper into a digital age where we find ourselves subsumed by an online reality like the metaverse. Hopefully not in a scenario like Ready Player One but in a more habitable, non-apocalyptic environment.

I think we can protect our online footprint best by regularly deleting our cookies and adjusting your privacy settings to our personal comfort level.

HULR: Absolutely. In the future, the rising trend of the Metaverse and things like that will come with the rise of AI, as you mentioned, facial recognition and neural networks. And they're already beginning to predict things like financial markets, large-scale data modeling, and behavior prediction.

So, how do you see the importance of your field in the coming decades with this new wave? And more importantly, do you see a collaboration between lawyers and federal government agencies to better protect consumers with this new wave of AI? Particularly with data privacy, where do you see this field in the future?

MDR: I think my field is extremely important as we enter this new age. Collaboration between lawyers and federal agencies to adapt to new technologies is already happening and will continue to improve as we further advance AI technology. As that happens, I think we will better understand AI and hopefully have clearer guidelines as to how it's used.