After a tattoo artist sued Warner Bros. over Hangover 2 for reproducing Mike Tyson’s face tattoo, now Cardi B is facing similar trouble over a distinctive tattoo on the back of a man on her mixtape Gangsta Bitch Music Vol. 1.
Kevin Brophy Jr., who is suing the rapper, explained that though he has never met Cardi B in person, he felt troubled by the picture of a man performing cunnilingus on Cardi B on the cover of the music video, as that man dons a similar tattoo featuring a tiger battling a snake.
He has demanded $5 million for the alleged violation of his right of publicity and giving a wrongful image of him. Thereafter, US District Court Judge Cormac Carney ruled out Cardi B’s motion. The judge stated that Brophy has put out a plausible claim for using his likeness without consent.
“Defendants argue that Plaintiff’s claim fails because he fails to allege that his face was visible or his name was used. Defendants, however, cite no authority for the proposition that a commercial misappropriation claim requires the use of the plaintiff’s face or name.
Plaintiff here alleges that his tattoo is part of his likeness because it is unique and distinctive. People, in fact, purportedly instantly recognize Plaintiff by his tiger snake tattoo,” wrote Carney in the order.
The decision also stated that “Whether the Gangsta Bitch covers is sufficiently transformative to obtain First Amendment protection is a question of fact,” which seems to set up the prospect of a jury trial.Cardi B’s lawyers, on the other hand, attempted to foreclose claims by putting the fact that they were preempted by copyright law, which exclusively governs disputes over original expression.
“The subject matter of Plaintiff’s claims does not fall within the subject matter of copyright. Plaintiff’s claims revolve around the use of his likeness … This is true notwithstanding the fact that Plaintiff’s likeness may be embodied in a copyrightable photograph or the tattoo design itself might be a copyrightable work.
Plaintiff here does not seek to vindicate an unauthorized use of a photograph or tattoo design, but the unauthorized use of his likeness… In other words, Plaintiff is not seeking to use the right of publicity simply to prevent ‘publication’ of an artistic, visual work,” said Carney.