Rap superstar Cardi B is going to trial… over a tattoo. Yes, you heard that right, and we doubt she “likes it like that”. Cardi B is headed to court for photoshopping a man’s tattoo on the cover for her mixtape “Gangsta Bitch Music Vol. 1”. The tattoo in question belongs to a man named Kevin Brophy Jr., a tattoo model who works for a surfing and lifestyle company in Newport Beach, California, according to hitc.com, who alleges that Cardi B misappropriated his likeness in a “a misleading, offensive, humiliating and provocatively sexual way” in an effort to launch her career, according to The Hollywood Reporter.
Kevin Brophy Jr.’s Invasion of Privacy
The lawsuit also includes a false light claim based on what the model with the photoshopped tattoo is doing to Cardi, which his highly sexually charged to say the least. A false light claim is a form of invasion of privacy and occurs when the victim is portrayed in a false or misleading way. It is similar to defamation, but is meant more to protect the victim from embarrassment and false association rather than from damage to their reputation.
We’re not going to attach the mixtape cover to this blog because…. well, it is pretty sexual, but you can view it here.
Cardi B Controversial Album Cover Argued as Fair Use
Cardi B argued that the mixtape cover image is a transformative fair use of Brophy’s likeness during a summary judgement motion, but the Judge was not having it. U.S. District Court Judge Cormac Carney rejected Cardi’s fair use defense because it would simply be handing the rapper a pretrial victory.
“To constitute a transformative fair use, the revised image must have significant transformative or creative elements to make it something more than mere likeness or imitation,” writes Carney. “A reasonable jury in this case could conclude that there are insufficient transformative or creative elements on the GBMV1 cover to constitute a transformative use of Plaintiff’s tattoo.”
Judge Craney refers to testimony from the designer of the album cover, Timm Gooden. Gooden was paid $50 to make a quick design from a few images and was told to grab another tattoo to photoshop on the model’s back. Gooden ended up using an image he found when googling “back tattoos”.
However, the tattoo is not necessarily positioned in in the exact same way as it appears on Brophy’s body. Cardi also argued that the neck tattoo was removed, that the arm was repositioned, that the image was tilted, and so forth, according to the Hollywood Reporter. However, the judge argues that a jury could find the changes to be “insufficiently creative”.
Cardi B Gangsta Music Vol 1 Album Cover Lawsuit Setbacks
As unimpressed as this Judge is by Cardi’s analysis, she feels the same with the analysis from Brophy’s expert on the topic of damages.
The proposed expert, Douglas Bania, sought to identify the amount of revenue the mixtape acquired that was attributed to the use of the tattoo. Bania noted that “84 percent of the album’s royalties were generated by streaming and downloading where the cover art appeared upon searches for the album,” and then went on to argue that, “$1,070,854 was related to use of the image for Gangsta Bitch Music Vol. 1, plus opined that $554,935 should be added for use of the likeness for Gangsta Bitch Music Vol. 2,” according to The Hollywood Reporter.
Again, the judge was not having it.
“Bania does [not] cite to any survey, poll, focus group, or other study where listeners — much less 100% of listeners — stated that the sole driver of their decision of what music to listen to is cover art, or that cover art is absolutely critical to their decision to listen to a song or album,” states the opinion. “Asked at his deposition whether he looked at surveys, polls, or studies regarding why consumers buy records, he could cite none. That is for good reason. Such a conclusion is pure fantasy.”
After reading the judge’s opinion you can see that both parties are not looking at a slam dunk case. Brophy will likely have issues winning damages – especially to the amount his expert projected – and Cardi B will still have to face the claims of false light.
The Trademark Lesson to be Learned
Looking back, Cardi B probably wishes she had never used Kevin Brophy Jr.’s tattoo, despite there being no evidence that it was intentional, and there being no reason as to why Cardi would wish to paint him in a false light.
Regardless of the intentions though, this was a careless mistake on her part. Although “Gangsta Bitch Music Vol. 1.” was released early in her career when she was not yet a household name, the importance of album art legalities remain the same, whether you’re an A-list star or a SoundCloud rapper.
RM Warner founding partner, Raees Mohamed, has this to say about the claims in the Cardi B lawsuit: “This is a real mess for Cardi B. It’s actually really embarrassing for her and the executives that produced the cover – how do you not question where your album cover artwork comes from? Always obtain the proper licensing for any creatives that you use in commercial work. Here, I think the artist has a strong misappropriation claim, and strong false light claim. The transformative fair use argument is so weak that it’s laughable – there’s nothing transformative about the depiction, compared to the original tat. The artist will forever be known by Cardi B’s depiction of his work on the back of someone giving her oral sex. If that’s not highly offensive, then I don’t know what is. I hope the jury awards significant damages in this case.”
Let this serve as a lesson for all aspiring entrepreneurs and influencers: don’t cut corners in the beginning of your career! Do everything by the book so you won’t have to face a jury when you start finally earning a chunk of change.
Think You Have a Trademark Case?
Consult with an experienced business attorney, like one from RM Warner Law, who is familiar with intellectual property laws, false light law, and misappropriation. Whether you’re trying to avoid a lawsuit like this one or you’re ready to seek justice, we can help. Get in contact with RM Warner today.
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