Cardi B Must Face Lawsuit Over Distinctive Tattoo on Album Cover

Cardi B - BET Awards - H Getty 2019
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The topic of tattoos has been a much-discussed legal issue for entertainment ever since a tattoo artist sued Warner Bros. over Hangover 2 for a reproduction of Mike Tyson's face tattoo. That case dealt with copyright. On Thursday, a California federal court judge issued a decision over a distinctive tattoo on the back of a man on Cardi B's mixtape, Gangsta Bitch Music Vol. 1, that highlights other legal avenues for trouble.

Kevin Brophy Jr. says that he has never met Cardi B, yet is troubled by the picture of a man performing cunnilingus on Cardi B on the cover of a mixtape because that man sports a similar tattoo depicting a tiger battling a snake. He is suing Cardi B (Belcalis Almanzar) and demanding $5 million in damages for how Cardi B allegedly violated his right of publicity and portrayed him in a false light. U.S. District Court Judge Cormac Carney has now rejected Cardi B's motion to dismiss.

The judge rules that Brophy has stated a plausible claim for using his likeness without consent.

"Defendants argue that Plaintiff’s claim fails because he fails to allege that his face was visible or his name was used," writes Carney in the order. "Defendants, however, cite no authority for the proposition that a commercial misappropriation claim requires the use of the plaintiff’s face or name. Plaintiff here alleges that his tattoo is part of his likeness because it is unique and distinctive. People, in fact, purportedly instantly recognize Plaintiff by his tiger snake tattoo."

Here's a picture of what's at issue:

In the opinion, the judge avoids much of a First Amendment analysis. Instead, the decision states, "Whether the Gangsta Bitch cover is sufficiently transformative to obtain First Amendment protection is a question of fact," which seems to set up the prospect of a jury trial.

Then there's the claim of false light, which is the law's mix-tape of privacy and defamation.

Here, the judge also gives a green light to Brophy's contention that Cardi B falsely misrepresented him as having sex with her — and that the allegedly humiliating image would be highly offensive to a reasonable person.

Cardi B's lawyers attempted to foreclose both claims by arguing they were preempted by copyright law, which exclusively governs disputes over original expression.

"The subject matter of Plaintiff’s claims does not fall within the subject matter of copyright," responds Carney. "Plaintiff’s claims revolve around the use of his likeness ... This is true notwithstanding the fact that Plaintiff’s likeness may be embodied in a copyrightable photograph or the tattoo design itself might be a copyrightable work. Plaintiff here does not seek to vindicate an unauthorized use of a photograph or tattoo design, but the unauthorized use of his likeness... In other words, Plaintiff is not seeking to use the right of publicity simply to prevent 'publication' of an artistic, visual work."

There's already been ample discovery in this case thanks to questions over jurisdiction, a topic that gets considerable attention in Carney's order.

Cardi B's deposition in this case has recently gathered public attention due to her sensational declaration that she indeed is a gangster, adding, "I’m not a pretty girl, or I am a pretty girl, but I’m not like this, this pink girly girl. I’m, like, the Buttercup, you know? There’s three powerful girls. There’s Blossom, and there’s Bubbles and there’s Buttercup, the green one. That’s me. That’s who I am."

Also in the deposition, she stated, "I’m really upset because I really have to be with my kid. All because of some bullshit trying to get money and then $5,000,000. Are you fucking kidding me? That mixtape didn’t even make, not even a million dollars. I got real lawsuits with real shit, and I got to deal with this bullshit. This is four hours long taking away from my time, my job, my motherhood.”