Cardi B is being sued over the cover of one of her mixtapes. According to The Hollywood Reporter, a man named Kevin Brophy, Jr. claimed that his tattoo was photoshopped onto the back of a man on the cover of the former Love & Hip Hop star’s mixtape, Gangsta B**** Vol.1. Brophy claimed that his tattoo was used in “a misleading, offensive, humiliating and provocatively sexual way” and also accused of using his image in a false light. The false light claim came about because the man on the cover of her project is performing oral sex.
Brophy Jr. is having difficulty determining how much he will sue the “Money” rapper for. He consulted with an expert named Douglas Bania to determine the amount but the judge dismissed it. The Hollywood Reporter stated that “Bania concluded that $1,070,854 was related to use of the image for Gangsta B**** Music Vol. 1, plus opined that $554,935 should be added for use of the likeness for Gangsta B**** Music Vol. 2. Judge Cormac Carney threw that claim out because he said it wasn’t fair to say that most of the streams and royalties that Cardi B earned from that project had to do with the use of that tattoo.
Bania does [not] cite to any survey, poll, focus group, or other study where listeners — much less 100% of listeners — stated that the sole driver of their decision of what music to listen to is cover art, or that cover art is absolutely critical to their decision to listen to a song or album,” states the opinion. “Asked at his deposition whether he looked at surveys, polls, or studies regarding why consumers buy records, he could cite none. That is for good reason. Such a conclusion is pure fantasy. 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.”
Even though Brophy Jr. doesn’t have a set amount of money he will sue Cardi B for, Judge Carney did rule during the pretrial that Brophy Jr. has a legitimate case.
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. 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 Mixtape Cover’s Designer Admitted to Finding the Tattoo on the Internet
The testimony from a man named Timm Gooden was crucial in Judge Carney’s decision for this matter to go to trial, The Hollywood Reporter noted. Gooden testified that he was paid $50 to design the cover of the project. When he turned in his first draft, he was told to change it. He admitted that he did a Google search for “back tattoos” and found the tattoo that Brophy Jr. claims to be his and photoshopped it onto the cover and submitted it.
Cardi B’s legal team said parts of the tattoo were removed, like the neck portion, and certain things were repositioned, but Judge Carney said there was still “insufficient” creativity.
“Most significantly, defining elements including the tiger and snake remain virtually unchanged,” he said in the decision. “Under these circumstances, a jury will have to decide the merits of Defendants’ defense.”