Legal
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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.
Battle rapper Tsu Surf is facing federal drug trafficking charges and other related counts following his arrest this week at a home in northern New Jersey.
The rapper, whose real name is Rahjon Cox, made his initial court appearance Friday (Oct. 14) but did not enter a plea. WNYW-TV in New York reported that Cox told the judge he had hired an attorney to represent him but the lawyer could not make the hearing, so the judge allowed another lawyer to fill in on Friday.
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Cox is among 10 people who were recently indicted on racketeering charges. They are allegedly members of a New Jersey-based Crips gang set known as the Silverbacc Gorillas or “SBG”.
U.S. marshals arrested the rapper Thursday afternoon at a home in Jersey City.
A spokesman for the U.S. Attorney’s Office in New Jersey did not immediately respond to a message sent late Friday afternoon seeking comment.
Ed Sheeran’s lawyers want a federal judge to rethink a recent decision that said the star must face a trial over whether “Thinking Out Loud” infringes Marvin Gaye‘s “Let’s Get It On,” warning that such rulings threaten to “strangle creation” by future songwriters.
Two weeks after Judge Louis Stanton refused to toss the case out, Sheeran’s attorneys respectfully told the judge Thursday (Oct. 13) that he was wrong – and that the only overlap between the two songs were simple musical elements that have “been used in music for centuries.”
“Affording copyright protection to a combination of only two unprotectable basic musical building blocks, such as the ones at issue here, would undermine a central purpose of copyright law – which is to encourage the creation of new works – and would instead strangle creation,” wrote Sheeran’s lead counsel Don Zakarin, an attorney at the firm Pryor Cashman.
In technical terms, Sheeran’s lawyers are asking the judge to reconsider his own ruling. If he does, it would be a rare step, typically only taken when it’s clear a judge has gotten something wrong. In the alternative, they’re asking for permission to file a fast-track appeal; if granted, it could delay any trial by at least a year.
Sheeran has long been dogged by questions of whether “Thinking Out Loud” (which spent 51 weeks on the Billboard Hot 100 after it was released in 2014) borrowed too much from “Let’s Get It On.” He did himself no favors in late 2014, when he was filmed on stage at a concert toggling between the two songs.
The singer was hit with the current lawsuit in 2018 – filed not by Gaye’s heirs but by an entity owned by industry executive David Pullman called Structured Asset Sales. That group owns a one-third stake in the copyrights of Ed Townsend, who co-wrote “Let’s Get It On” with Gaye.
Faced with the accusations, Sheeran’s lawyers argued that the elements he allegedly took from the Gaye’s song – a chord progression and the harmonic rhythm – were too commonplace to be the exclusive property of any one songwriter. They cited a number of other songs, including “Since I Lost My Baby” by The Temptations, that featured similar aspects.
For their part, Sheeran’s accusers admit that those elements, by themselves, are “commonplace and unprotectable.” But they say that when they were combined together in Gaye’s famous song, they became something more original and worthy of copyright protection.
In late September, Judge Stanton refused to side with either argument. He said there was “no bright-line rule” for deciding such questions, and that the pop star would need to make his arguments before a jury of his peers. The decision set the stage for a blockbuster trial at a Manhattan federal courthouse at some point in the future, though a date has not yet been set.
Thursday’s new motion, if granted, would avoid that trial entirely, or push it back if the judge approves the fast-track (“interlocutory”) appeal. In it, Sheeran’s attorneys argued that the court was correct about the lack of a “bright line,” but that the case against Sheeran still fell well short of the mark.
“No one can or should be able to claim the exclusive right to a chord progression and the unremarkable and unprotectable manner in which it is performed,” Sheeran’s lawyers wrote. “Defendants respectfully submit that the order overlooked these critically important legal considerations.”
The arguments from Sheeran’s lawyers sound quite a bit like comments the star himself has made about copyright litigation in the music industry. In April, after he defeated a similar case over “Shape of You,” Sheeran said “baseless” cases were taking a personal toll on him, and that he now films all of his recording sessions to disprove potential claims of infringement.
“It’s really damaging to the songwriting industry,” Sheeran said at the time. “There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify.”
A day after an Atlanta judge refused to release Gunna from jail, his lawyers made a striking accusation against prosecutors on Friday – claiming an alleged smoking gun text message cited by government lawyers actually had “nothing to do with witness intimidation” and had been used to mislead the court.
At a hearing on Thursday, prosecutors told Judge Ural Glanville that they were in possession of a message in which a co-defendant offered to “whack someone” on Gunna’s behalf. A short while later, the judge denied the rapper bond for a third time, meaning he’ll remain in jail until his January trial.
But in Friday’s filing, Gunna’s lawyers said they’d finally gotten their hands on the message in question – and that it was from June 2020 and “has nothing to do with witness intimidation or obstruction.”
According to the new filing, the actual message reads: “Tell gunna happy c day it’s all love [100 and heart emojis] I’ll still a whack some Bout him.”
“For the state to [argue] that this text is an offer to commit murder (or to threaten or injure a witness in a case that was still two years in the future) aptly illustrates the problem of a hearing by ambush and proffer,” wrote attorney Steve Sadow and Gunna’s other lawyers.
“Respectfully, at each of the bond hearings before the Court, the State has relied on proffers of evidence— never disclosed to Kitchens prior to a hearing — and none of the proffers has panned out,” Sadow wrote.
A spokesman at the Fulton County District Attorney’s Office did not immediately return a request for comment.
Both Gunna (real name Sergio Kitchens) and Young Thug (Jeffery Williams) were indicted in May, along with dozens of others, on accusations that their group YSL was not really a record label called “Young Stoner Life,” but a violent Atlanta street gang called “Young Slime Life.” The charges included allegations of murder, carjacking, armed robbery, drug dealing and illegal firearm possession over the past decade.
The two stars, who strongly deny the charges, have both repeatedly sought to be released on bond ahead of their trials, which are currently scheduled for January. But both have been refused, largely because prosecutors have warned that they might threaten witnesses or otherwise obstruct the case.
Ahead of Thursday’s hearing, Gunna’s lawyers said those warnings had largely been premised on unreliable “proffers” from the government, none of which had later proved to be based on hard proof. They said there was not “a shred of evidence” to support keeping him locked up before he has been proven guilty.
But at the hearing, prosecutor Adriane Love repeatedly cited the supposed “whack” statement by the co-defendant, arguing that it suggested people were willing to murder witnesses for Gunna. She said she was uncertain about whether the message in question had yet been uploaded into court records, but said it would be available by the end of the day if not. Minutes later, Judge Glanville denied bond.
On Friday morning, having seen the text in question, Gunna’s lawyers argued that Love “misstated” the evidence and had thus “misled” Judge Glanville. They put particular emphasis on the date, since it allegedly suggested witness tampering the current criminal case: “The text in question, dated June 14, 2020 — almost two years before the indictment was returned in this case — has nothing to do with witness intimidation or obstruction.”
The new filing did not outright ask the judge to reverse his own decision, but asked Judge Glanville to officially note the actual date and content of the text message, rather than rely on the description offered by prosecutors.
The case against YSL is built around Georgia’s Racketeer Influenced and Corrupt Organizations Act, a state law based on the more famous federal RICO statute that’s been used to target the mafia, drug cartels and other forms of organized crime. Such laws make it easier for prosecutors to sweep up many members of an alleged criminal conspiracy based on many smaller acts that aren’t directly related.
Beyond indicting two of rap’s biggest stars, the case also made waves because it cited their lyrics as supposed evidence of their crimes — a controversial practice that critics say unfairly sways juries and injects racial bias into the courtroom. California recently banned the tactic in that state, but Fulton County District Attorney Fani Willis has strongly defended using it against Young Thug and Gunna.
Barring delays — a very real possibility — trials are currently scheduled for early January.
The federal judge didn’t phrase it quite the same as Cardi B, but the message was the same.
Months after the superstar rapper tweeted BBHMM – “bitch better have my money” – Judge William Ray ruled Thursday that a gossip blogger who made salacious claims about Cardi must either immediately pay her an almost $4 million defamation verdict, or secure a bond covering the entire amount.
With the blogger Tasha K seeking to pause the huge judgment while she appeals it, Judge Ray said he would only do so if she can post a so-called supersedeas bond covering the entire amount. If Tasha (real name Latasha Kebe) loses her appeal, that money will then be automatically handed to Cardi.
Issued by private lenders, such bonds allow a losing litigant to delay paying a full judgment while they appeal. But they typically require large upfront deposits and property collateral to cover an eventual payment in the event that the appeal is unsuccessful.
Cardi’s lawyers asked for the bond last month, citing Tasha’s own public statements like one suggesting she had perhaps moved to Africa. They said they were worried she might use the delay caused by the appeal to avoid paying entirely.
“This is more than a hypothetical concern in this case,” attorney Lisa F. Moore and Cardi’s other lawyers wrote Friday. “During the litigation, Kebe bragged publicly that she had taken steps to insulate herself from a judgment. And there have been recent online reports that Kebe has moved from Georgia to avoid enforcement of the judgment.”
The judge did order additional briefing on the total amount of the bond, saying he might consider “an amount less than the full amount of the judgment” if properly persuaded. Lawyers for Tasha did not immediately return requests for comment. Lawyers for Cardi declined to comment.
Cardi B (real name Belcalis Almánzar) sued Tasha in 2019, seeking to end what the rapper’s lawyers called a “malicious campaign” to hurt Cardi’s reputation. The star’s attorneys said they had repeatedly tried – and failed – to get her to pull her videos down.
One Tasha video cited in the lawsuit includes a statement that Cardi had done sex acts “with beer bottles on f—ing stripper stages.” Others videos said the superstar had contracted herpes; that she had been a prostitute; that she had cheated on her husband; and that she had done hard drugs.
Following a trial in January, jurors sided decisively with Cardi B, holding Tasha liable for defamation, invasion of privacy and intentional infliction of emotional distress. They awarded more than $2.5 million in damages and another $1.3 million in legal fees incurred by the rapper, and Judge Ray later issued an injunction forcing her to pull the videos from the internet.
Tasha appealed that verdict last month, arguing in her opening appellate brief that Judge Ray withheld key details from jurors and the verdict was the result of a “very lopsided” trial. She’s vowed to keep fighting the case “all the way to the Supreme Court if need be,” even if it “takes years” to do so.
But Thursday’s order means that appeal will not offer Tasha much reprieve from the judgment unless she wins it. And appeals like the one Tasha is fighting face long odds, particularly when they seek to overturn a jury’s verdict.
It’s unclear if she would be able to pay the judgment or secure a supersedeas bond; in a recent Instagram post, she claimed to have withdrawn the last $1,083 from her bank account. Federal bankruptcy is an option, though civil judgments and other debts incurred by wrongdoing aren’t always discharged through that process.
The comedian & his co-plaintiff Clayton English allege they were racially profiled and illegally stopped at Hartsfield-Jackson Atlanta International Airport.