By Chris Cooke | Published on Tuesday 8 December 2020
A judge in California has declined to issue a summary judgement in Cardi B’s favour in an ongoing dispute with a model who accuses the rapper of infringing his publicity rights by Photoshopping his image onto the cover of her 2016 mixtape ‘Gangsta Bitch Music Vol 1’.
A photo of Kevin Brophy was inserted into the cover artwork so that it appeared as if he was performing oral sex on the rapper. You can’t see Brophy’s face in the artwork, but he argued that his distinctive back tattoos made it super obvious that it was him in the image. And to that end he sued in 2017.
Seeking summary judgement in her favour, the rapper argued that the designer who created the ‘Gangsta Bitch Music Vol 1’ artwork significantly altered the original photo of Brophy’s back. Therefore, the use of the photo was “transformative fair use” and not an infringement of Brophy’s publicity rights under Californian law.
The judge conceded that the designer had indeed altered the original photo when inserting it into the artwork image. But, he added, “significant elements of plaintiff’s tattoo remain untouched in the final album cover”. Therefore the fair use argument would need to go before a jury.
Judge Cormac J Carney wrote in his judgement: “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”.
Which means the case can now proceed to a jury trial.