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Next year is shaping up to be a landmark year for tattoo trials. The latest, thanks to a federal court ruling Friday, has Cardi B facing a jury for using a man’s distinctive tattoo on the cover of her first album.
Kevin Brophy Jr. alleges Cardi B misappropriated his likeness in “a misleading, offensive, humiliating and provocatively sexual way” in order to launch her career. And at this point, there’s no dispute whose tattoo appeared on Gangsta Bitch Music Vol. 1, although Brophy does include a false light claim (a cross between privacy invasion and defamation) based on what the pictured tattooed man (not Brophy but rather a male model) is doing (cunnilingus).
In a summary judgment motion, Cardi B argued that the cover image is transformative fair use of Brophy’s likeness.
U.S. District Court Judge Cormac Carney rejects fair use as a basis for handing Cardi B a win in the lawsuit at the pretrial stage. (See full ruling below, which includes an image of the offending album cover.)
“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.”
The judge points to testimony from Timm Gooden, who created the album cover. Gooden got $50 to make a quick design from a few images he was given. Gooden turned in a draft and was told to go find another tattoo over the back of the male model. So Gooden googled “back tattoos,” found an image, and pasted it onto the cover.
The judge hears word from Cardi B’s side that the neck tattoo was removed, that the arm was repositioned, that the image was tilted, and so forth, but the judge believes that the jury could find that the changes were insufficiently creative. “Most significantly, defining elements including the tiger and snake remain virtually unchanged,” continues the decision. “Under these circumstances, a jury will have to decide the merits of Defendants’ defense.”
On the more hopeful side for Cardi B, the judge has nixed Brophy’s expert on the topic of damages.
Douglas Bania, the proposed expert, looked to ascertain the amount of revenue attributable to use of the tattoo, and so the expert 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. Bania concluded 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.
The judge isn’t impressed with the analysis.
“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 hypothesizing other ways that others may have come to Cardi B’s album, Carney adds, “Put another way, Bania’s theory means that if Defendants had not used Plaintiff’s tattoo on the GBMV1 cover, Cardi B would have made no money on the album — at least on the streaming services where the tattoo appears. There is absolutely no basis for this conclusion, and the Court in its role as gatekeeper will not allow a jury to rely on it.”
As a result, Brophy appears to be having trouble on the damages end, although punitive damages is still on the table, and the false light claim remains as well.
Cardi B’s prospective tattoo trial adds to other pending legal actions over use of tattoos including one against the WWE for copying a wrestler’s tattoo for video games. That action was brought by the tattoo artist and is also headed to a jury.
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