By PAUL ANDERSON
SANTA ANA, Calif. – Jurors took about an hour Friday to find that singer Cardi B did not violate the privacy rights of a marketing employee of the Costa Mesa-based clothing company RVCA when she used an image of his tattoo on her debut album.
After the jurors rendered their verdict rejecting the claims of Kevin Michael Brophy Jr., Cardi B shook hands with him.
“At the end of the day I respect you as an artist,” Brophy told Cardi B. “We have a lot of mutual friends.”
Brophy told Cardi B that when he tried to contact her team to take care of the issue with the image of the tattoo on his back that was used for the album art no one responded.
“I didn’t know which way to turn,” he said.
After the hearing, Cardi B told reporters, “I was really nervous… I was a little emotional… I got a little scared,” as she awaited the verdict.
“But I am beyond grateful,” she added. “I really don’t do crying at all… but it means a lot to me, to my legal team, to everybody.”
She thanked her “really great lawyers… everyone was amazing.”
She said the legal conflict was an “interesting case. I think everybody really learned a lot.”
In his closing argument, Brophy’s attorney said Cardi B repeatedly “blew off” Brophy, who objected to the album art because the Photoshopping of a tattoo on a model made some people mistakenly think the tattoo artist was performing a sex act with her.
Brophy sued Belcalis Almanzar, known by her stage name Cardi B, alleging his privacy was invaded. He claimed in the federal suit misappropriation of a likeness, use of a likeness in violation of state law and false light.
An attorney for the rapper countered the plaintiff failed to produce any witnesses to back up Brophy’s claim. Cardi B’s attorneys mounted a First Amendment defense of “transformative use” because the portion of Brophy’s tattoo, which was lifted from an online image, was altered with Photoshop and placed on the back of another model.
“Mike Brophy’s privacy has been violated, invaded … in a way that is grossly offensive to him,” Brophy’s attorney Lawrence Conlan argued.
Brophy also sought an injunction from U.S. District Judge Cormac Carney to halt Cardi B’s future use of the cover of her debut album, “Gangster Bitch Music, Vol. 1.” The cover depicts the singer taking a swig of beer while a tattooed man performs oral sex on her in a car.
Brophy “is trying to be a role model” to young athletes in his job in marketing for the clothing brand. He spent a year and a half getting the tattoo from his friend, Fullerton artist Tim Hendricks.
Conlan argued that Brophy has suffered “humiliation” and “embarrassment” with “jabs” on social media about the album cover.
“He has not asked for it, doesn’t want it and he’s asked them to stop,” Conlan said.
The “back piece” tattoo is “part of his identity, and his identity is at the heart of this case,” Conlan argued.
The tattoo of a tiger and a serpent “is a masterpiece he carries on his skin,” Conlan argued. “And it is his alone to show it the way he wants to show it.”
Brophy is a “regular” guy with a wife and two “beautiful children,” who doesn’t seek notoriety, Conlan said. Part of his anxiety from the album cover stems from his fear of having to explain the image to his children one day.
“He’s terrified of the day he’s got to talk to his kids about what happened,” Conlan said. “He wants to be able to tell them he put a stop to it and got justice.”
When it came time for the photo shoot for the album, which was released in March 2016, no one liked the “Calvin and Hobbes” tattoo on the back of the Canadian model they used, Conlan said. So the graphic designer found the image of Brophy’s tattoo and used a portion of it to Photoshop onto the model, Conlan said.
Conlan argued that music industry professionals especially should understand the importance of getting consent before using an image. When Brophy sent a cease-and-desist letter, Cardi B’s representatives just “blew it off,” Conlan argued.
Conlan played clips of Cardi B during her deposition in the case as she dismissed Brophy’s claim.
“I didn’t give a (expletive) about this tattoo,” Cardi B said in the deposition, referring to the model’s original skin art. “So what does that got to do with me?”
Cardi B said she thought the model was “real cute” and that the primary focus of the art was her face in the picture.
“Do you have any proof this man is distressed,” she added during the deposition. “How is this affecting your life … It’s ridiculous. It’s wasting my time. It’s wasting my money.”
Conlan argued that the singer “wasn’t acknowledging his feelings.”
All her camp had to do was crop the image, as was done on the vinyl released in April 2020, to remove the model, Conlan argued.
Conlan said Cardi B has made $1.3 million in profits from the album and suggested that the jury could have taken all of it, or any amount of it, away and give it to his client. He also said the jury could have awarded his client $100,000 to $500,000 for five elements alleged, including humiliation and embarrassment.
He accused Cardi B of putting profits ahead of his client’s privacy.
Cardi B’s attorney, Peter Anderson, countered that it was Brophy who was chasing dollars instead of restoring his reputation.
Anderson noted that Brophy had five years of litigation to produce witnesses who could testify that the plaintiff has been teased or harassed about the album cover.
“He hasn’t proved any of these texts or social media postings taking jabs at Mr. Brophy,” Anderson said. “Why didn’t they call any of those people? … Cardi B was right. She said it in her own way, but where are these witnesses?”
Anderson also argued that no one would mistake Brophy for the model on the album, because the model is a Black man with a full head of hair and Brophy has a shaved head and is white.
“Anyone would know by looking at the artwork that’s not Mike Brophy,” Anderson said.
Furthermore, Cardi B, who has millions of followers on social media, posted pictures of her with the model from the album art photo shoot, Anderson said.
“The model himself also posted photos like this,” Anderson said.
The image of the tiger is a common one in the world of tattoos, Anderson argued.
“This is not a copyright claim,” which would require the appropriation of a person’s identity, Anderson argued. “His face is nowhere depicted in the artwork.”
“Their entire case is, `We asked them to stop,”‘ Anderson said. “This is not about asking anyone to stop. It was about trying to get as much money as you can.”
