Cardi B was cleared of liability in an action alleging that she misappropriated a man’s likeness by using his unique back tattoo on the cover of her 2016 mixtape. Scott Hervey and Josh Escovedo discuss this in this installment of The Briefing by the IP Law Blog.
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Rap star Cardi B has been cleared of liability by a California jury in the Central District in the action alleging that she misappropriated a man’s likeness by using his unique back tattoo on the cover of her 2016 mixtape. That’s what we’ll be discussing on this installment of The Briefing by the IP Law Blog.
On October 21, 2022, a federal court jury found Cardi B was not liable for misappropriation of a man’s likeness by using his back tattoo on the cover of her 2016 Gangsta Bitch Music Vol. 1 mixtape to make it look as if he were performing a sex act on Cardi. This all began in 2017, when Kevin Michael Brophy, a tattoo model and marketing manager for surf and skate company RVCA, filed suit against Cardi over the aforementioned mixtape cover after sending a cease-and-desist letter that went unanswered. According to Brophy, the tiger and serpent tattoo on the model on the cover resembles his own and constitutes a misappropriation of his likeness under Civil Code section 3344 and false light invasion of privacy. Brophy claims that he was angry because “It looks like I’m giving oral sex to somebody that’s not my wife, or somebody that’s not my partner, and an image that I never signed off on, ever. Being a father of two and a devoted husband and a man of faith as well, this goes against everything that I stand ford, and I would never ever sign off on something like this.”
Brophy claims that he suffered shame, embarrassment, and humiliation after learning that portions of his tiger back tattoo had been overlaid onto the back of the black model featured on the cover of Cardi’s 2016 mixtape. For those reasons, he sought compensatory, punitive, and disgorgement of profits from the mixtape.
But irrespective of the claimed damages, the jury ultimately concluded that Cardi B was not liable to Brophy. This came after hearing testimony from Brophy and his wife and his alleged humiliation and concerns, as well as testimony from Cardi and her former manager who stated that the model on the mixtape cover was not Brophy and that the image had been substantially altered, giving rise to First Amendment protection under the transformative use doctrine. The jury also hear from the graphic designer who edited the image. He said that he found the back tattoo somewhere on the internet after searching for a backpiece tattoo.” He also claimed that he made several changes to it, removing certain pieces, color correcting, and rearranging other parts of the tattoo before overlaying the image onto the model’s back.
During closing argument, Plaintiff’s counsel argued that the defense was continuously trying to explain how the tattoo was transformed, yet they denied using Brophy’s likeness. According to Plaintiff’ counsel, if they weren’t using Brophy’s likeness, then they wouldn’t have had to argue about how they had changed it. Plaintiff’s counsel argued that Brophy’s likeness was material to the vision for the mixtape and that Brophy’s back tattoo is what makes Cardi look strong and in control. Of course, the jury obviously rejected these arguments, ultimately finding in favor of Cardi.
That’s right. But here’s a question for you Scott, even though this is taking place in the Ninth Circuit, if the law from the recent Illinois District Court case involving Randy Orton applied, would the tattoo artist have a claim against Cardi for copyright infringement? I know we would have to evaluate the merits of Cardi’s fair-use defense in greater detail, but let’s assume for the sake of the discussion that it were not fair use. Would Brophy’s tattoo artist have a claim even though it seems Brophy himself would not?
I don’t think the Court’s decision in the Orton matter was correct, and I think it will be reversed and remanded by the Seventh Circuit, but IF it applied, I think Brophy’s tattoo artist would have potentially had a claim against Cardi. Luckily for Cardi, it was Brophy bringing the claim.