Controversial American rapper Kanye West, legally named Ye, has taken his battle with a diehard fan who owns a Melbourne burger joint to the Federal Court, in a case that one intellectual property lawyer says is almost certainly doomed to fail.
College Dropout Burgers owner Mark Elkhouri has been accused of misleading and deceptive conduct by Ye in a 43-page statement of claim filed last week in the Federal Court, the latest escalation in the months-long David-and-Goliath saga.
In the documents, lawyers alleged the name of the Ivanhoe burger joint was a direct reference to Ye’s debut album, College Dropout, and noted a menu item that lists regular beef burger ingredients topped with “dropout sauce”.
The facade of College Dropout Burgers also includes the illustration of a bear, which the legal team drew a comparison to Ye’s album art where a person dressed in a mascot bear costume is slumped on a set of bleachers.
“I can’t understand what would motivate a major artist to sue a small humble burger restaurant on the other side of the world,” Elkhouri said in a statement.
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“Ye has suffered, and will continue to suffer, loss and damage,” the documents alleged.
“Ye has sold more than 140 million records internationally and is one of the best-selling artists of all time.”
But IP expert Nathan Mattock, a partner at Marque Lawyers, says it will be an extremely tough sell for the courts to sympathise with Ye’s claims of damage.
“Although there may be copyright infringement, the claim that Ye has suffered loss and damage or reputational damage is farfetched,” Mattock said.
“At best, Ye may be successful in having the name changed but to suggest there are damages from a small burger joint using burger names as a tribute to the artist appears to push the envelope.”
Indeed numerous fast food outlets across the country “borrow” terminology or references from rap and hip-hop culture in their branding or menu items, as the hunger for American-style burgers continues to grip Australian consumers.
Burger chain Milky Lane’s menu includes a “Fried Chicken Weezy”, a “Chic-Kanye”, a “Little Weezy”, “The Drake” and a “Big Poppa”, while kebabs and burger cafe Biggie Smalls includes a lyric from the late rapper on its homepage.
But when is a homage more than a homage? It all depends on how litigious the mega-stars in question want to get over menu items a world away in Australia, Mattock continues.
“Anyone seeking to use the names or titles from other works of musicians and artists always faces the risk of ‘take down’ action, so they need to be aware of that,” he warned.
“Often celebrities take this type of action to ensure people don’t rip off their name for their own benefit.”
The federal court document comes after Elkhouri reportedly received a cease-and-desist letter in June about his restaurant, which led him to rename menu items and paint over a mural with the phrase ‘Insert logo here. OK thanks bye’.
“It’s pretty hard being a Kanye West fan with this situation, we have to respect his wishes and move forward,” Elkhouri told The Age at the time.
“I am extremely disappointed. There’s no doubt about that, but it doesn’t even come close to the impact that he’s had on my life.”
Elkhouri added that a “real Kanye fan” will always defend the rapper, though fans may have been tested by Ye’s recent anti-Semitic comments that drew widespread condemnation and earnt him a ban on Instagram and Twitter.
Despite Elkhouri’s moves to water down the references, Ye’s lawyers claim Australians would still assume the Melbourne burger joint was affiliated with the rapper and are seeking a permanent injunction.
That would stop Elkhouri’s business from using any references that would lead the public to believe the products or business was sponsored, affiliated or approved by Ye.
Lawyers are also demanding Elkhouri destroy any material that references Ye or his branding, withdraw the Australian trademark application for College Dropout Burgers, and pay their costs.
But Mattock says he’ll be surprised if the judge is persuaded by this argument.
“I’m quite sure people wouldn’t believe Ye has collaborated with a small Ivanhoe burger joint in North East Melbourne,” he said.
Emma Elsworthy is Climate Editor at Crikey, SmartCompany, and The Mandarin, and writes daily morning newsletter the Worm. Before joining Crikey in 2021, Emma was a breaking news reporter in ABC’s Sydney newsroom, a journalist at BBC Australia, and a journalist in Fairfax Media’s regional network. She was part of a team awarded a Walkley for coverage of the 2019-2020 Black Summer bushfire crisis, and won the Australian Press Council prize in 2013.
