Cardi B on trial for putting man’s tattoo on album cover – Billboard

Next year is shaping up to be a pivotal year for tattoo tryouts. The latest, thanks to a federal court ruling on Friday, saw Cardi B face a jury for using a man’s distinctive tattoo on the cover of her debut album.

Kevin Brophy Jr. alleges that Cardi B appropriated her image in “misleading, offensive, humiliating and sexually provocative ways” in order to launch her career. And at this point there is no dispute over the tattoo that appeared on Gangsta Bitch Music Vol. 1although Brophy includes a false light allegation (a cross between invasion of privacy and defamation) based on what the tattooed man in the photo (not Brophy but rather a male model) is doing (cunnilingus).

In a motion for summary judgment, Cardi B argued that the cover image is a transformative fair use of Brophy’s likeness.

United States District Court Judge Cormac Carney rejects fair use as a basis for giving Cardi B a victory in the pretrial lawsuit. (See the full ruling below, which includes an image of the offending album cover.)

“To constitute transformative fair use, the edited image must have significant transformative or creative elements to make it something more than a mere likeness or imitation,” Carney writes. “A reasonable jury in this case might conclude that there are insufficient transformative or creative elements on the cover of GBMV1 to constitute a transformative use of plaintiff’s tattoo.”

The judge cites the testimony of Thomas Gooden, who created the album cover. Gooden was given $50 to do a quick drawing from some images given to him. Gooden returned a draft and was told to go get another tattoo on the male model’s back. So Gooden Googled “back tattoos,” found an image, and pasted it onto the cover.

The judge hears from Cardi B’s side that the neck tattoo was removed, the arm was repositioned, the image was tilted, etc., but the judge thinks the jury could conclude that the changes did not were not creative enough. “Most importantly, the defining elements of the tiger and the snake remain virtually unchanged,” the ruling continues. “In these circumstances, a jury will have to decide on the merits of the defendants’ defense.”

On the more optimistic side for Cardi B, the judge rejected Brophy’s expert on the subject of damages.

Douglas Bania, the proposed expert, sought to determine the amount of revenue attributable to the use of the tattoo, and therefore the expert noted that 84% of album royalties were generated by streaming and downloading where the cover art appeared when searching for the album. Bania concluded that $1,070,854 was related to the use of the image to Gangsta Bitch Music Vol. 1and estimated that $554,935 should be added for use of the likeness for Gangsta Bitch Music Vol. 2.

The judge is not impressed by the analysis.

“Bania does [not] cite any survey, poll, focus group or other study where listeners – let alone 100% of listeners – said the only driver in their decision about what music to listen to is cover art, or that cover art is absolutely essential to their decision to listen to a song or an album,” the notice states. “When asked during his testimony if he had consulted any surveys, polls or studies on why consumers buy records, he could not name any. It’s for good reason. Such a conclusion is pure fantasy.

After speculating on other ways others could have come to Cardi B’s album, Carney adds, “In other words, Bania’s theory means that if defendants hadn’t used the applicant’s tattoo on the GBMV1 cover, Cardi B reportedly made no money off 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 gatekeeper role, will not allow a jury to rely on it.

As a result, Brophy appears to be in trouble when it comes to damages, though punitive damages are still on the table and the false light claim also remains.

Cardi B’s upcoming tattoo lawsuit adds to other ongoing lawsuits over the use of tattoos, including one against WWE for copying a wrestler’s tattoo for video games. This action was brought by the tattoo artist and is also directed to a jury.

This article was originally published by The Hollywood Reporter.

About Elizabeth J. Swartz

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