Cardi B is facing a lawsuit from a man who alleges that she used the design of his distinctive tattoo on the cover of her first album.
Kevin Brophy Jr alleges that the rapper photoshopped his distinctive back tattoo onto someone else’s body and used it without his permission, which ultimately appropriated his likeness in “a misleading, offensive, humiliating and provocatively sexual way”
Brophy’s argument is said to focus on the cover of 2016’s ‘Gangsta Bitch Vol 1 – which sees a male model with his tattoo performing cunnilingus on the singer.
In a summary judgment motion, Cardi B argued that the cover image is transformative fair use of Brophy’s likeness.
But as per The Hollywood Reporter, U.S. District Court Judge Cormac Carney has rejected fair use as a basis for handing Cardi B a win in the lawsuit at the pretrial stage.
“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,” explained 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 also made note of a testimony from Timm Gooden, who created the album cover.
According to Gooden, he was given $50 to create a quick design, and was later told to find another tattoo to superimpose over the back of the male model. Gooden is said to havve googled “back tattoos,” found an image, and pasted it onto the cover.
While lawyers for Cardi B argue that changes were made to the tattoo on the cover, the judge believes they 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.”
But if Brophy is successful in his lawsuit, it remains unclear if he could be in line for significant damages. An initial estimation from proposed expert Douglas Bania suggested that Brophy could receive up to $1.5m USD, but his conclusion was dismissed by Judge Carney as “pure fantasy”.
Carney added: “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.”