Tat on Cardi B Album Didn’t Flout Man’s Image Rights, Jury Says

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.

The case hinged not on copying an expressive work but on commercial appropriation of Brophy’s likeness. Brophy argued that his work for a surfing and lifestyle company requires him to be shirtless regularly, and that his unique tattoo of a tiger fighting a snake “has become a unique feature and likeness by which both his friends and the business and surfing community know him.”

Brophy sued in 2017 when he first learned of the album art, which he said left him “shocked, outraged, humiliated, and appalled.”

Cardi B said she’s “beyond grateful” in a tweet after the verdict.

“After the verdict Michael Brophy, Cardi b and Mr. Rafael shook hands, they were gracious winners,”. Brophy’s attorney A. Barry Cappello said in an emailed statement. “Mr. Brophy is a stand up human being. If this chapter can close it may be best for the Brophy family’s ability to put this behind them. That’s all that is important.”

Cardi B, whose legal name is Belcalis Almanzar, conceded that her team had an amateur graphic artist find a different back tattoo to replace the tattoo of the model used in the photo shoot. That designer searched the internet “back tattoos” and copied a photo of Brophy’s tattoo from the results.

The issue went to trial after Judge Cormac J. Carney decided the question of whether the use was transformative should be left to a jury. It was undisputed both that an internet photo of Brophy was used for the cover and that the image was altered—with part of the tattoo removed—and re-sized and shaped to fit the contours of the model’s back.

Carney excluded from trial Brophy’s expert who’d calculated damages to total $1.5 million. Carney ruled the expert’s conclusion a “fantasy” as he claimed that all $1 million earned from five streaming sites that showed the cover art from GBMV1 were attributable to Brophy’s likeness. The expert’s testimony also said another $500,000 from her next album were also attributable to the violation.

The case is Kevin Michael Brophy Jr. v. Belcalis Almanzar, C.D. Cal., No. 17-1885, Verdict 10/21/22.