02 Aug CARDI B SUED BY MODEL OVER USE OF HIS LIKENESS
Rapper Cardi B is being sued by a model over the cover of her 2016 mixtape Gangsta Bitch Music Vol 1. The cover features a photograph of Cardi B drinking from a bottle of beer, whilst a man with a distinctive back tattoo appears to be performing oral sex on her. The model who posed for the cover is not Kevin Brophy Jr, who is bringing the lawsuit, but the tattoo which appears on the back of the model is that of Mr Brophy. Mr Brophy is suing over the use of his likeness. He also claims that his image has been used in “a misleading, offensive, humiliating and provocatively sexual way”, that he has suffered distress and humiliation, and would not have consented to his likeness being used to depict sexual activity with Cardi B.
The designer of the album cover, who was paid $50, says that he photoshopped the tattoo onto the cover image after doing a Google search for back tattoos. Cardi B’s lawyers claim the way the tattoo was used constitutes a “transformative fair use”. In a previous ruling a judge found that this could not be decided at a preliminary stage and the case will go to trial. Although some changes were made, a jury could find that these were not sufficiently transformative. “Most significantly, defining elements including the tiger and snake remain virtually unchanged,” the decision said. “Under these circumstances, a jury will have to decide the merits of Defendants’ defence.”
However, at a pre-trial hearing, the judge expressed the view that Mr Brophy’s estimate of the damages he would be owed if successful was “pure fantasy”.
Cardi B’s lawyers also say that it is clear Mr Brophy is not in the cover photo as the model is of a different ethnicity, and that, in any event, the cover image does not portray actual sexual activity and that the “use of his tattoo design did not show plaintiff in a false light or would be highly offensive to a reasonable person in plaintiff’s position.”
The trial of the case was expected to start this month after settlement negotiations failed, but has been postponed due to Cardi B’s lawyer’s ill-health. Cardi B is expected to give evidence in person.