Already in Court, Cardi B Faces Another Trial

Aron Solomon

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FILMMAGIC

While Cardi B won her defamation trial on Monday against YouTuber Tasha K, she faces another trial as early as next month, this time as a defendant.

The plaintiff, Kevin Brophy Jr., has an elaborate and unique tattoo covering the entire expanse of his back. He alleges that Cardi B stole this image of the tattoo for the cover of her album, “Gangsta B* Music Vol. 1,” the debut 2016 mixtape that helped rocket her to stardom.

The album cover in issue portrays the artist in the back seat of a limousine, drinking beer, while a shirtless man with a full-back tattoo is implied to be performing oral sex on her.

Brophy’s claim is that the representation of the man was intended to be him, as his tattoo is remarkable and unique. He is claiming that the album cover was created without his permission and that he has suffered damages from Cardi B’s use of this image.

Can a tattoo actually be considered your intellectual property?

New Jersey lawyer, David Gelman, argues yes, it is absolutely possible, within the law, to own the intellectual property rights to a tattoo:

“Tattoos are a form of pictorial art. Assuming that a person has a unique and perhaps elaborate tattoo and someone else chooses to use that image in a commercial way, the person who has the tattoo - and the creator of the design, if it is a different person - could potentially have a defensible copyright claim.”

The tattoo in issue in the Cardi B case is a very elaborate physical tattoo on a real person’s back. This is relevant because, as Copyright Alliance explains, the issue becomes far more complicated in tattoo depictions in video games. One can easily imagine that extending these depictions to the metaverse is going to make the issue much more complicated.

But we aren’t yet in the metaverse, so here, IRL, we’re faced with something very similar to, well, a face. Had Cardi B used the face of a random man on her album cover, there could be a claim that she used that person’s image without permission. A clearly-identifiable and truly unique tattoo, especially one that covers a man’s entire back, is their property, the plaintiff’s argument will surely go. Any non-consensual use of that image, especially in a commercial venture such as a record album, could constitute an infringement of ownership rights.

This is something that a court will decide, as Cardi B and Brophy are almost certainly heading there. Allhiphop.com reported in December that the parties tried to settle the case on December 1st, but the results were not at all promising. Cardi B sees this case as a “celebrity shakedown” and denies that her use of this image has caused Brophy any harm. Brophy continues to allege that the use of the image of his tattooed back on the album cover ruined his life.

These alleged damages may be harder to prove. In the circles in which one would imagine Brophy travels, a Cardi B album cover involving him and his tattoo might be seen as a badge of achievement and notoriety that he could actually leverage for financial gains. But even if he was indeed ashamed by its appearance on the album, given that he is suing for $5 million, Brophy will need to demonstrate to the court tangible losses if he actually hopes to recover.

As they prepare to head to court, this case is further complicated by Cardi B’s strained relationship with her former manager. She continues to claim that he was the one who found the image, and did so by googling “back tattoo.” Whether this is true will have no bearing upon whether the image taken was proprietary. Just because we find something on Google doesn’t mean we have the legal right to use it for commercial purposes.

The next steps are a court meeting in the first week of February to figure out calendaring issues for this trial that has already been delayed multiple times due to Cardi B’s other court and business obligations.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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