Man Who Sued Over His Tattoo Kinda Appearing On A Cardi B Cover Loses, Pays Legal Fees
from the red-ink dept
It’s crazy just how many posts we’ve done here on the subject of tattoos. But if you go and review the posts we have done on this topic, you will notice that the majority of them involve tattoo artists as the ones asserting intellectual property rights, not those who got the tattoo on their person. The subject of this post is about the latter.
Most of you will be at least tangentially familiar with Cardi B, the rap star. In 2016, Cardi B released a mixtape entitled Gangsta Bitch Music Vol. 1. The cover for the mixtape was designed to invoke a challenge to traditional gender roles in rap and flip them such that Cardi B is decidedly not subserviant to men.
It turns out the inspiration for the tattoo on the man who is, um, subserving Cardi B was a tattoo that appears on the back of a man named Kevin Brophy. The depiction of the tattoo on the cover isn’t exactly the same as that of Brophy’s, but they’re damned close.
And as a result, Brophy sued Cardi B for misappropriation.
A married father of two and lifelong surfer, Brophy lives in Costa Mesa and works as a marketing manager for a surfing lifestyle company. He told the jury of four men and four women on Tuesday that he worries his young son and daughter will eventually see the cover or that their friends will show it to them.
“This was a long journey to get this tattoo. It took a lot of commitment,” Brophy said. “To see it in this light was a complete slap in the face and a complete disrespect to me and my family. It looks like I’m giving oral sex to someone who’s not my wife, someone who’s not my partner. An image that I never, ever signed off on — ever,” Brophy testified.
On the one hand, I can understand the discomfort here. Even a hint of being depicted performing a sex act on a music artist on an album cover probably wasn’t Brophy’s best day ever. But here’s the problem: Brophy lost his case. Why? Because the cover didn’t appropriate Brophy’s image. It took a small part of his image, the tattoo, changed that to some degree, and then Photoshopped it onto the back of a man that is not recognizable as Brophy. For instance, Brophy is bald and the man on the cover has hair. Brophy is white, while the man depicted on the cover is black.
And, all of this amounts to transformative speech protected by the First Amendment.
Cardi’s lawyer Peter Anderson gave the closing for her side, arguing mixtape cover uses parts of Brophy’s tattoo in a way that transforms them into another piece of art and is protected by the First Amendment. He also questioned how Brophy has been harmed, saying his lawyers have been speaking in hyperbole by saying Cardi has ruined his life for five years.
As a result, Brophy has subsequently agreed to pay Cardi B’s attorney’s fees.
“The parties now have reached an agreement avoiding the necessity of Defendants’ motion for attorney’s fees and application to tax costs and Plaintiff’s New Trial Motion,” says the stipulation, filed Monday. Under that agreement, Brophy will pay $350,000 in attorney’s fees and withdraw his motion for a new trial.
Which appears to have followed an exchange during the verdict of the original trial, in which Brophy made a point of telling the artist he respected her work and mentioned they even know some people running in the same circles. She is reported to have responded kindly.
Which is probably a bit easier after you get win after win in court.
Filed Under: cardi b, copyright, kevin brophy, misappropriation, tattoo