During Kendrick Lamar's Super Bowl performance, a moment of high anticipation was met with a surprising twist. Would he perform Not Like Us, the controversial diss track aimed at his rap rival, Drake? Or would he admit defeat in his ongoing rap battle with Drake and not perform his most popular song due to a lawsuit Drake filed against Lamar's (and Drake's) record label, UMG Recordings, Inc.? This performance, set on the grand stage of the Super Bowl, may be a pivotal moment in the legal battle.
Lamar first teased the Grammy Award-winning song by rapping, "I want to perform their favorite song, but you know they love to sue." This line was referencing Drake's recent lawsuit against UMG for defamation/defamation per se for publishing and promoting Not Like Us and other songs painting Drake in a negative light (the "Lawsuit"). In his Complaint, Drake explicitly states that the "[L]awsuit is not about the artist who created "Not Like Us" i.e., Lamar (the person who wrote and performs the song), and is "entirely" about UMG, the music company that "approved, published, and launched a campaign to create a viral hit out of a rap track that falsely accuses Drake of being a pedophile and calls for violent retribution against him."
So, what is defamation? Defamation is a written (libel) or spoken (slander) false communication published to a third party and harms another person's reputation. Similarly, defamation per se is a type of defamation that is so harmful that it is considered defamatory by law and does not require proof of damages. In Colorado, for example, statements accusing someone of a crime, having a sexually transmitted disease, or defaming them in their trade, business, profession, or office can be grounds for defamation per se.
Typically, the speaker must have acted at least negligently (failure to act with care) to be liable for libel (or slander or defamation). But because Drake is a public figure, he must show that UMG acted with malice (knowledge of falsity or reckless disregard for the truth) in publishing Not Like Us.
In public statements, UMG has denied any malice and instead claims that "it invested massively in [Drake's] music . . . to help him achieve historic commercial and personal financial success."
UMG may also be able to invoke the affirmative defense of "truth" if it proves Drake committed the crimes referenced in the songs. It is surprising that Drake would want to open himself up to such an invasive investigation, which is why many believe that the Lawsuit, filed only in mid-January, was Drake's hail mary attempt at preventing Lamar from performing Not Like Us at the Super Bowl.
So, did the Lawsuit cause UMG to prevent Lamar from performing Not Like Us? No, it did not. Lamar ended his performance with this fan-favorite song, smiling into the camera as he rapped, "Say, Drake, I hear you like 'em young, you better not ever go to cell block one," which was shortly followed by the crowd chanting,'"tryna strike a chord and it's probably A-Minor." Although the song was censored and Lamar did not explicitly call Drake a "certified pedophile," he wore a lower "a" chain (a reference to the A-minor line), and two of Drake's ex-girlfriends, SZA and Serena Williams, performed with him. At the end of his performance, the lights displayed the words, "Game Over." Game over, indeed.
Legal pundits agree that Lamar's Not Like Us performance will go down in infamy. It will undoubtedly be the first Super Bowl halftime performance to be used as evidence in trial. This unique aspect of the case is sure to pique the interest of the legal community and the public alike.
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