Kevin Brophy, Jr. has claimed the man orally pleasuring the rap star in the photo on the front of her Gangsta B**ch Music Vol. 1 mixtape has skin art on his back of a tiger battling a snake that resembles a design he has, and is demanding $5 million (£4 million) in damages for the violation of his right of publicity.
While Cardi hit back and asked for a dismissal of the case in August, U.S. District Court Judge Cormac Carney rejected her motion. The case went to federal court on Friday, with the Bodak Yellow star arguing the cover image is transformative fair use of Brophy’s likeness.
However, Judge Carney disagreed, stating: “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.
“Most significantly, defining elements including the tiger and snake remain virtually unchanged. Under these circumstances, a jury will have to decide the merits of Defendants’ defence.”
Judge Carney also disagreed with Brophy’s consultant Douglas Bania on how much damages and how much money was related to the use of the image for Gangsta B**ch Music Vol. 1.
“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,” Judge Carney said.
Punitive damages are still on the table, however, with the trial set to go in front of a jury next year.
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