kevin brophy
Cardi B didn’t hold back when she took the witness stand Wednesday (Oct. 19) in a lawsuit claiming her sexually-suggestive album cover left a man “humiliated,” repeatedly sparring with an opposing attorney, requesting “receipts” and claiming her accuser is “harassing” her in hopes of scoring a settlement.
The rapper’s testimony came in an unusual case filed by Kevin Brophy, a California man who claims parts of his back tattoo was unwittingly photoshopped onto the cover of Cardi’s 2016 mixtape Gangsta Bitch Music Vol. 1 to make it look like he was performing oral sex on the now-superstar.
During Wednesday’s hearing, Cardi and Brophy’s attorney, A. Barry Cappello, battled repeatedly. At two different points during their sparring, the judge dismissed the jurors from the courtroom to calm the bickering down. On the second dismissal, things got so heated that the judge told Cappello he had “totally crossed the line,” and even threatened to declare a mistrial after jurors had left the courtroom.
Earlier in the day, Brophy’s attorneys said they had sent the star a cease-and-desist seeking to have the image removed – prompting Cardi to fire back that the case was really about money, not changes to an album cover.
“This is not about taking anything down. Y’all have been harassing me for $5 million,” the star said to Cappello. Cardi later noted that the mixtape did not even earn that much, and her cut was even less.
The star also took exception to the suggestion that Brophy’s image on the cover had somehow contributed to her meteoric success over the past decade – a key part of his legal case against her. She said she had been “working my ass off [for] two kids” and that it’s “really insulting to me as a woman that a man is claiming responsibility.”
Released in 2016, the cover image of Gangsta Bitch certainly raised eyebrows. In it, the then-rising star is seen taking a swig of a large beer, staring directly into the camera with her legs spread wide and holding a man’s head while he appears to perform oral sex on her.
The actual man in the image was a model who had consented to the shoot, but a giant tattoo on the man’s back belonged to Brophy. Unbeknownst to Cardi, a freelance graphic designer had typed “back tattoos” into Google Image, found one that fit (Brophy’s), and Photoshopped it onto the model’s body. It apparently didn’t occur to him that he would need anyone’s approval to do so.
Brophy sued in 2017 for millions in damages, claiming he was “devastated, humiliated and embarrassed” by the cover. He says Cardi and others violated his so-called right of publicity by using his likeness without his consent, and also violated his right to privacy by casting him in a “false light” that was “highly offensive.”
Cardi’s legal team has argued those accusations are “sheer fantasy” and “vastly overblown” – and that Brophy is just suing her in an effort to “cash in the legal equivalent of a lotto ticket.” Her legal team says nobody would have recognized a relatively unknown man based merely on his back, and that he has little proof anyone did.
The trial kicked off on Tuesday, when Brophy testified that Cardi’s “raunchy” image had caused severe stress on his life. He called it a “complete slap in the face” that had caused him “hurt and shame.”
But at Wednesday’s hearing, Cardi pointed out from the witness stand that the model in the image was “a Black man that’s fit” who has hair. Brophy is white with a shaved head.
“It’s not Mr. Brophy’s back. It doesn’t look like Mr. Brophy at all,” she told Cappello. “There has been not one receipt he has provided in the court claiming, ‘Hey, that’s you on Cardi’s mixtape.’”
Wednesday’s proceedings also featured testimony by Brophy himself and his wife, as well as Cardi’s former manager Klenord “Shaft” Raphael. Testimony will continue on Thursday, with a verdict expected on Friday or Monday.re
When Cardi B released her debut mixtape Gangsta Bitch Music Vol. 1 back in March 2016, she used an album cover that, ahem, grabbed plenty of attention.
The image featured the then-rising star taking a swig of a large beer, staring directly into the camera with her legs spread wide. Between them, she was holding a man’s head in her hands, while he appeared to perform oral sex on her.
The man in the image was a model who had consented to the photoshoot, but a massive tattoo on his back (a tiger battling a snake) wasn’t actually his. Unbeknownst to Cardi, a freelance graphic designer had typed “back tattoos” into Google Image, found one that fit, and photoshopped it onto the model’s body.
It apparently didn’t occur to him that he would need anyone’s approval to do so.
Six years later, Cardi will head to trial Tuesday in a civil lawsuit filed by Kevin Brophy, the California man whose tattoo was superimposed onto the Gangsta Bitch cover. The trial, expected to run about a week, will feature the star herself taking the witness stand. Fresh off winning a huge verdict against a blogger who told “disgusting lies” about her, Cardi will now find herself on the other side of the courtroom.
Seeking millions in damages, Brophy claims the superstar exploited his identity in a “humiliating and provocatively sexual way to launch her career.” But Cardi’s attorneys say those accusations are “sheer fantasy,” since nobody would have even been able to tell it was him. Brophy, they say, is “trying to cash in the legal equivalent of a lotto ticket.”
“Humiliated and Appalled”
In October 2017, Brophy filed a lawsuit in Los Angeles federal court against Cardi (real name Belcalis Almánzar), claiming that he had been “shocked, outraged, humiliated, and appalled” when friends notified him about the mixtape cover.
“He has had to face uncomfortable comments, questions, and ridicule, from community members and family,” Brophy’s lawyers wrote at the time. “His family dynamic has been adversely affected, and his work and professional life have been unalterably damaged by his having to explain this unconsented-to, offensive, and malicious use of his image.”
In technical terms, Brophy accused Cardi of two specific acts of wrongdoing: misappropriating his likeness for commercial benefit – violating what’s known as his “right of publicity” – and invasion of his privacy by casting him in a “false light” that was “highly offensive” to a reasonable person. The lawsuit asked for $5 million in damages.
In addition to naming Cardi herself as a defendant, the case also named her company, Washpoppin Inc., and KSR Group, the company owned by her former manager firm Klenord “Shaft” Raphael. The case notably did not name Timm Gooden, the designer who actually copy-and-pasted Brophy’s back tattoo onto the cover.
A “Transformative” Use?
Seeking to have the case tossed out without a trial, attorneys for Cardi argued (among other things) that the Gangsta Bitch cover made “transformative fair use” of Brophy’s likeness – a key defense that would have afforded them the protection of the First Amendment.
They claimed the designer used “only a very limited portion” of the original image as part of new, larger creative work, and had clearly not done so in any sort of effort to capitalize on Brophy’s identity.
But in December 2020, Judge Cormac J. Carney ruled that argument would need to be decided by a jury. He said there was no dispute that Gooden had made “some changes,” but also that “significant elements of plaintiff’s tattoo remain untouched in the final album cover.”
“A reasonable jury in this case could conclude that there are insufficient transformative or creative elements on the [album] cover to constitute a transformative use of Plaintiff’s tattoo,” the judge wrote at the time. “Most significantly, defining elements including the tiger and snake remain virtually unchanged.”
“It Is Not Him”
In addition to renewing that fair use argument, Cardi’s lawyers have plenty of other defenses they can try at the upcoming trial. Chief among them is that she and the other defendants simply did not use Brophy’s likeness at all, since nobody would have recognized a relatively unknown person based on a cropped image of his back tattoo.
“The tattoo design itself, as ‘priceless’ as it may be to plaintiff, subjectively speaking, was only used in an anonymous manner, as a single building block, one small peripheral element, in a complex picture and scenario in which Cardi B is the focus and central figure,” Cardi’s lawyers wrote in a brief earlier this year.
“No matter how much plaintiff may be obsessed with the notion, the fact remains that it is not ‘him,’ or a ‘likeness of him,’ or ‘his identity’ in the cover image,” they wrote. “It is simply a use of a small portion of a tattoo design, applied to the body of someone (young, Black, with hair) obviously not plaintiff (a middle-aged Caucasian with a shaved head).”
Lawyers for Brophy will try to counter that narrative. They plan to call witnesses, including both Brophy’s wife and the tattoo artist who inked him, to argue that the man was “immediately recognizable by the tattoo and that others recognized plaintiff’s likeness.” Brophy himself will take the witness stand to testify about discovering the image and the impact it had on him.
In addition to those witnesses and Cardi herself, other people taking the stand this week will likely include Gooden, the designer who created the image; Cardi’s former manager Klenord “Shaft” Raphael; and legal and business experts who can weigh in on the various issues in the case.
How Much Harm? The Money At Stake
If the jury holds Cardi and the other defendants liable on any of the claims they’re facing, jurors will then have choose how much to award Brophy in damages. His initial complaint asked for $5 million, but jurors will not simply award that; instead, they’ll wrangle with tough questions about how much he’s owed.
For starters, they’ll weigh how much emotional and reputational harm he’s suffered as a result of the wrongful use of his image. There’s no objective standard for such questions, and jurors can award what they believe is reasonable, leading to a wide range of potential outcomes based on how this week’s trial plays out.
On that front, Brophy says his “family life was negatively affected by stress and worry,” and that he was “devastated, humiliated and embarrassed” by his appearance on the cover. Cardi’s lawyers fire back such claims are “vastly overblown” and unsupported by any evidence, like proof that he or his family sought therapy or other treatment for their supposed mental injuries.
Jurors will also be tasked with trying to figure out how much profit from Gangsta Bitch Music Vol. 1 was directly linked to Brophy’s image, another source of potential damages. Earlier in the case, an expert witness provided by Brophy’s lawyers argued that all digital profits from Cardi’s mixtape (a total of $1.6 million) were fair game. But Judge Carney rejected that approach as “pure fantasy,” saying it did not appear that the image was the primary factor driving the mixtape’s revenue.
Separately, the jurors could also choose to award so-called punitive damages if they find the wrongdoing against Brophy to be particularly egregious, but that figure would be calculated in a future proceeding.
The Courtroom Fight Ahead
The trial, taking place at the U.S. federal courthouse in Santa Ana, will kick off with jury selection on Tuesday morning and is expected to run for four to five days. A verdict could be reached as early as Friday, but deliberations could stretch into next week.
Cardi and the other defendants will be represented by Jonathan Segal and other lawyers from the white-shoe firm Davis Wright Tremaine LLP, as well as by Lisa F. Moore of Moore Pequignot LLC, who represented Card in the defamation case in which she won the $4 million verdict earlier this year. For most of the case, Cardi was represented by attorney Alan G. Dowling, but Segal and Moore stepped in at the last minute when Dowling backed out of the case in August due to serious health problems.
Brophy will be represented by attorney A. Barry Cappello, Lawrence J. Conlan and Wendy Welkom from the law firm Cappello & Noel LLP.
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