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In February 2016, Kanye West tweeted that his new album, The
Life of Pablo, "will never never
never be on Apple. And it will
never be for sale . . . You can only get it
on Tidal." Six weeks later, the album was available on
iTunes and on other platforms as well.
In Baker-Rhett v. Aspiro AB, the plaintiff brought a
putative class action against Tidal, the music streaming site, and
Grammy award winner Kanye West, alleging that they made false and
misleading claims about the availability of the album.
Owned primarily by Jay-Z, Tidal was marketed as the first
artist-owned streaming music service. A number of other
musical artists, including Kanye West, owned stakes in the company
as well.
Tidal promoted the fact that West's album was available
exclusively on Tidal, tweeting, "We're bringing
@KanyeWest's #TLOP to fans around the globe. It's
streaming exclusively on TIDAL.com." Then, the next day,
West tweeted that the album would
"never" be available anywhere else.
Within the first ten days after the release of the album, the
number of subscribers to Tidal tripled.
The plaintiff alleged that he never would have signed up for
Tidal, and paid the subscription fee, if he could have gotten
access to West's album elsewhere. After a brief stop in
California, the case ended up in the United States District Court
for the Southern District of New York. In the plaintiff's
second amended complaint, he alleged claims under Sections 349 and
350 of the New York General Business Law, and for fraudulent
inducement.
The court held that the plaintiff lacked standing to bring the
Section 349 and 350 claims -- for engaging in deceptive acts or
practices and for false advertising -- because the plaintiff did
not allege that he was deceived in New York.
On the other hand, the court held that the plaintiff had
sufficiently alleged a claim for fraudulent inducement. In
order to prove fraudulent inducement, the plaintiff must show that
the defendant made a material false representation, the defendant
intended to defraud the plaintiff, the plaintiff reasonably relied
on the representation, and the plaintiff suffered damage. The
court did not buy West's argument that his tweet -- that the
album would "never never never" be
available elsewhere -- was true when it was made, since only
"newly updated, remixed, and remastered versions" of the
album were released on other platforms. The court said that it has
"little difficulty concluding that the complaint plausibly
pleads that Mr. West's statement that his album would
never never never be available on Apple
Music or for sale was false."
The court also found that the plaintiff's fraudulent
inducement claim against Tidal could not be based merely on the
tweet that "It's streaming exclusively on
TIDSAL.com," since it was an accurate statement at the time it
was made, and since it didn't make any promises about where the
album would be available in the future.
While it's too early to tell how this case will turn out,
it's certainly an important reminder that the specific words
you choose to use in advertising do matter.
This alert provides general coverage of its subject area. We
provide it with the understanding that Frankfurt Kurnit Klein &
Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
omission. Our attorneys practice law only in jurisdictions in which
they are properly authorized to do so. We do not seek to represent
clients in other jurisdictions.
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