On account of a federal court ruling on Friday December 4, Cardi B will be taking to the stand to convince a jury of her innocence, after being sued for using a man's photo on her Gangsta Bitch Music Vol. 1 album cover. Kevin Brophy Jr. alleges that the "WAP" rapper portrayed his likeness in "a misleading, offensive, humiliating and provocatively sexual way." Brophy's defence alleges that his tattoo drove listeners to stream her music, and therefore is the reason for her success.
The U.S. District Court Judge, Cormac Carney, rejected Cardi's initial argument, stating that the cover image is transformative fair use of Brophy's likeness. "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," Carney's ruling reads. "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."
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So how did Brophy's tattoo wind up on Cardi's album cover in the first place? According to a testimony by Timm Gooden, the graphic designer who created the artwork, he was paid $50 to draft a design. After submitting the artwork, he was instructed to find an additional tattoo to photoshop on to the back of the male model seen on the cover. So, he Googled "back tattoos," stumbled upon Brophy's tattoo, and used it. Cardi explained to the judge that the tattoo was repositioned and therefore used in a creative way.
But Carney believes that the jury may find that justification insufficiently creative. "Most significantly, defining elements including the tiger and snake remain virtually unchanged," Carney's ruling continues. "Under these circumstances, a jury will have to decide the merits of Defendants’ defense."
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Fortunately for Cardi, the judge doesn't believe that Brophy's tattoo was the reason her album was a success. His ruling adds that the defence "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. 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."
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