I apparently haven’t been paying enough attention to Cardi B these days, as I managed to miss the jury verdict in October related to “tattoo-gate” and her album cover I’m still not allowed to show you:
Rapper Cardi B didn’t violate a man’s right of publicity by transposing his back tattoo onto a model for the racy cover of her 2016 mixtape, a California federal jury said Friday.
Kevin Brophy Jr. initially sought $5 million for the transposition of his distinctive full-back tattoo onto the back of another man suggestively performing a sex act on Cardi B on the cover of “Gangsta Bitch Music Vol. 1.” A jury disagreed, apparently accepting the rapper and reality TV star’s argument that the 2016 cover for her first mixtape was transformative fair use.
In December, a judge denied Brophy’s appeal:
“The jury had an ample basis for its verdict. For example, the jury could have reasonably concluded that the back tattoo on the model on the mixtape cover at issue in this suit was not sufficiently identifiable with Brophy to constitute misappropriation of his likeness or depiction in a false light. Because the model’s face is not visible, identification based on facial appearance is impossible,” Judge Carney wrote.
Even more compelling, he wrote, was the small part the tattoo played in the overall composition of the cover art.
That said, Brophy isn’t giving up. In January, he attempted to revive the suit, arguing that the original trial had significant problems with it.
The first of these alleged prejudicial errors of law involves Brophy Jr.’s purportedly being “deprived of his fundamental and substantial right to cross-examine Cardi B at trial.” Ahead of this trial, the court determined that “each party would have two opportunities to examine each witness,” per Brophy Jr.’s motion.
Regarding the second of the above-noted “prejudicial errors of law,” the filing likewise takes aim at the court’s alleged decision to exclude evidence from Cardi B’s separate defamation trial. The “Up” artist won the latter (albeit as a plaintiff) with the same trial counsel as in the tattoo suit, and Brophy Jr. says that the defamation matter’s claims “are strikingly similar to the claims in this case.”
I still have no idea how he didn’t manage to pull a false-light claim out of this, other than the idea that the model didn’t look enough like him to make people think he was the “model.” Either that, or he couldn’t prove that reasonable people would find it “highly offensive” to be considered the “lap friend” of Cardi B on that album cover.
In any case, here’s a look back at how this all got started and a couple good lessons that still stand up, regardless of who ends up winning…
Trying to find fresh and relevant cases involving “misappropriation” or “false light” claims of invasion of privacy can be difficult.
Thank God for Cardi B.
A federal judge in Santa Ana, California, has refused to dismiss a lawsuit alleging that a man’s distinctive back tattoo was used without his permission in a sexual picture on an album cover by rapper Cardi B.
U.S. District Judge Cormac Carney of the Central District of California refused to dismiss the suit by plaintiff Kevin Michael Brophy Jr., who sports a full back tattoo that shows a tiger battling a snake.
Brophy said his likeness was misappropriated in the photoshopped image in “a misleading, offensive, humiliating and provocatively sexual way.” He alleges misappropriation of likeness or identity, violation of the right to publicity under California law, and false light invasion of privacy.
Based on the decency standards my editors have for me here, I can’t include a copy of the album cover (I tried adding it to a Facebook post on this and I got flagged for violating community standards…). I also can’t mention the title of the album cover or even EXPLAIN what it is that is happening ON the album cover here.
Just Google “Cardi B,” “album cover” and “Gangsta” and you’ll like find it.
Essentially, let’s just say that Cardi B is drinking a beer while the male model upon whom Brophy’s back tattoo has been superimposed is doing something where the tattoo is fully visible and the man’s face is not.
The concept of misappropriation is the use of someone’s image without their approval. A simple example of this would be if one of my students was running for student body president and thought my endorsement would be valuable to him. Thus, he grabbed a photo of me teaching and included it on his posters without asking for my endorsement.
False light claims tend to put two true things close enough together that people will see them as related, even if they’re not. In cases like these, the court is looking at the “gist” of the material to see if a falsehood is implied. For example, in Solano v. Playgirl, Inc., actor Jose Solano won a false-light suit after the magazine published his photo along with headlines implying he posed nude in the magazine, which he did not.
Some states, like Colorado, don’t recognize these kinds of legal nuances, rolling them instead into either general defamation or copyright claims, depending on what is at the core of the case. In other cases, the claims are without merit and get tossed quickly, leaving few true battles over who has the right to control a personal image.
In this case, it’s a daily double, in that the “misappropriation” claim of Brophy’s image (it’s a heck of a tattoo…) and the “false light” claim (that isn’t Brophy on the cover, but anyone who knows him and that tattoo would be hard-pressed to determine that on first glance) seem to fit the definitions perfectly.
The rapper’s legal team asked a federal judge to toss the suit back in December, arguing the album art was covered under a fair-use claim, in that the reworking of the tattoo into the piece made the work transformative. The court disagreed and the case will move forward to trial in the near future.
“I’m really upset because I really have to be with my kid. All because of some bulls**t trying to get money and then $5,000,000. Are you f***ing kidding me? That mixtape didn’t even make, not even a million dollars.” Cardi added, “I got real lawsuits with real sh**, and I got to deal with this bulls**t. This is four hours long taking away from my time, my job, my motherhood.”
Ah, yes… If I close my eyes, I can almost hear my own mother’s voice uttering those exact words…
In any case, regardless of how this turns out, here are two key things you can learn from just watching this train wreck take place:
Permission for use solves almost everything: In reading through the coverage of this case and the depositions, it turns out the guy who designed the cover just Googled “back tattoo” and grabbed this one at random. (It also turns out he was paid $50 to build the cover, which could be the cautionary tale of “You get what you pay for,” I suppose.)
I would bet every dollar in my pocket right now against a pile of nothing that when this guy built the cover, he NEVER thought anyone would complain about their image being used in this fashion. The… let’s call it “up close with Cardi B”… nature of this image would likely be bragging rights for almost every human male on the planet, I would imagine.
In this case, he appears to have found the one guy with the one tat who didn’t feel this way. That’s why it’s important to ask people for permission to use their stuff. I could assume that any journalism outlet would LOVE to have its stories or photos or illustrations included in a textbook to illustrate how the true greats of the field operate. However, my publisher believes in covering its keester, so we have permission forms that get signed and stored.
Maybe Brophy is making a power play and could care less how he would be portrayed on an album cover, so long as he got paid. Maybe Brophy is truly a man who views this representation of him as “misleading, offensive, humiliating and provocatively sexual,” and is truly upset by this. Who knows? The key is that it’s his right to have his body portrayed as he sees fit, which is why this is going to court.
Permission would have made this much easier to figure out, so make sure you get it.
“But it’s JUST for X” is never an excuse: Somewhere in the sprawling field of asterisks that populate Cardi B’s quote above is the notion that the album only made $1 million, so to have to pay out $5 million is ridiculous. The problem here is that she’s not being sued for a portion of revenue. She’s being sued to penalize her for her actions.
The law can be more or less forgiving in certain situations, but it is the law. Therefore, deciding to steal something and then say, “but it was JUST…” isn’t necessarily going to keep you out of trouble. I can’t remember how many times I’ve critiqued a high school or college paper that basically stole an image and published it. (Writing “Photo courtesy of Google” didn’t make it any better.) When I pointed out how much trouble this could create, I got the “Well, it’s JUST for a HIGH SCHOOL newspaper. I’m sure people have better things to do that try to sue us.”
Maybe. But a) Is that a risk you want to take? and b) Is that the lesson you want to teach your students? (“Steal small, kids, and you’ll never have to take responsibility for it!”)
I’ve seen this happen both ways, with bigger news outlets stealing from student newspapers (One told my photographer, “You’re just a student publication. You should be happy we’re using your work…” Um… No…) and student papers stealing from the big dogs. Both cases are wrong and in both cases, you can get into trouble for doing it.
I’m sure this guy who got paid $50 to design this thing for one of the myriad women who would likely crash and burn on “Love and Hip Hop” was thinking, “I’m just doing this thing for beer money. No way anyone buys this stupid thing.” However, he hit big, so now everyone is paying the price.
It’s like speeding: Sure, you might get away with five over, but when the cop in Rosendale pulls you over for doing 31 in a 30, the “But I was just speeding a little!” excuse is not going to fly.