10:46am PT by Eriq Gardner
Judge Questions Worth of an Allegedly Illicit Tattoo on Cardi B Album Cover
Cardi B's breakthrough, chart-topping album is titled Invasion of Privacy. The hip-hop artist whose real name is Belcalis Almanzar explains she picked the title because she has recently felt like "an animal at the zoo." Perhaps she's sincere, although coincidental or not, she's currently facing a claim of violating someone else's privacy rights. The lawsuit focuses on a distinctive tattoo and a risque pose and is stimulating from a legal standpoint. On Thursday, a federal judge wasn't quite ready to dismiss it.
The plaintiff is Kevin Brophy Jr., who once worked in the entertainment industry and is now a family man working for a surfing and lifestyle company. Brophy alleges never having met Cardi B. And yet, he identifies the tattoo on his back depicting a tiger battling a snake as being the same tattoo on the back of a man who is performing cunnilingus on Cardi B on the cover of a mixtape, Gangsta Bitch Music Vol. 1. These are the relevant images from the court papers:
Brophy first claims that Cardi B has misappropriated his likeness through use of his distinctive tattoo. The plaintiff believes he is the only person in the world with this tattoo and says that because his vocation in the surfing industry requires him to be regularly without a shirt, his friends and those in the industry know him by what's on his back. "People can instantly recognize him by his tiger snake tattoo," states the complaint.
Then, there's a false light claim — and it's a doozy.
"The Gangsta Bitch cover explicitly misrepresents plaintiff having sex with Cardi B," continues Brophy's complaint. "The cover of Gangsta Bitch is designed to attract consumers to the Cardi B edge persona, and to promote her music and her image as a hard, dominant and aggressive rapper. This includes the unauthorized use of plaintiff's likeness, his unique tiger snake tattoo as an essential part of the scenario, featuring plaintiff as her sex toy."
Last month, Cardi B brought a motion to dismiss. The response confirms that the man in the photo is not the plaintiff, but a third-party male model, and rather amusingly, characterizes the notion that the album art portrays oral sex as a "fanciful result of Plaintiff's ego and imagination running amok."
"What is Plaintiff really seeking?" asks Cardi B's attorney, Alan Dowling. "Simple: Whatever piece of Cardi B's income he can gouge out, and whatever free ride on her famous coat-tails he can gain, through the extortionate means of this unfounded, preposterous action."
As for the real legal arguments, Dowling tells the judge that the photo enhances the "utter anonymity of the male figure," implying that the tattoo alone can't convey Brophy's likeness. Dowling also contends that this is a classic example of a transformative work and an exercise of the photographer's First Amendment rights. He adds that the value of the use of the photo doesn't derive primarily from Brophy's persona and that no one is likely to recognize the African American in the photo as Brophy, nor find it highly offensive.
"The fact that a third party might –- against all evidence to the contrary—jump to the erroneous conclusion that it is Plaintiff in the photo with Cardi B, that the album art is meant to be erotic (much less pornographic) or that Plaintiff ever engaged in any such activity with her, all despite Plaintiff’s own repeated denials that such was the case, cannot serve as an adequate basis for this action, or for invoking federal jurisdiction," states the motion to dismiss.
Finally, Dowling argues that the claims are preempted by copyright law and notes that Brophy didn't design his tattoos. Consider it an odd twist on the copyright fuss surrounding tattoos.
In an order yesterday, U.S. District Court Judge Cormac Carney doesn't reach the question of whether Brophy has properly stated a claim. Instead, he addresses Cardi B's jurisdictional challenge.
Should the case be litigated in California? Carney doesn't think there's jurisdiction over Cardi B there just because she actively promoted her album in California, held a release party in Oakland and Los Angeles, sent copies to California companies and so forth. But Carney is granting a motion to allow Brophy to conduct jurisdictional discovery to clarify the extent of her business and presence in the state.
There's also the matter of subject matter jurisdiction, which starts to get into the question of the worth of Cardi B's use of an allegedly illicit tattoo. For the case to proceed in federal court, the parties have to have diverse citizenship (Brophy is from California, Cardi B from New Jersey) and the amount in controversy has to exceed $75,000.
"Plaintiff alleges in his Complaint that his damages, which include injury to reputation, humiliation, embarrassment, mental distress, unauthorized use of his likeness, and loss of commercial value of his likeness, exceed $5,000,000," writes the judge. "There is nothing in the record to support Plaintiff’s allegation that the amount in controversy exceeds $5,000,000. In other words, there is nothing in the record from which the Court can determine whether the amount in controversy requirement has been met. Plaintiff’s mere, unsupported allegation is not enough. As a result, the Court sua sponte orders the parties to conduct jurisdictional discovery to clarify whether the amount-in-controversy requirement has been met."
For now, the motion to dismiss has been denied without prejudice. Cardi B can try again in 90 days after the parties investigate the basis for having this lawsuit in California federal court.