Legal
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R. Kelly’s former business manager asked a federal judge to award him $850,000 in attorneys fees after a jury acquitted him during the same trial in Chicago at which the R&B singer was convicted of child pornography charges.
Derrel McDavid’s attorney wrote that deserves to recoup the legal fees after enduring a “frivolous, vexatious and bad faith prosecution over which he prevailed.” Attorney Beau Brindley filed the 18-page request with U.S. District Judge Harry Leinenweber late Monday (Oct. 17), the Chicago Sun-Times reported.
A federal jury last month convicted Kelly of producing child pornography and enticing minor girls for sex, but found Kelly and McDavid not guilty of conspiring to rig a 2008 trial in which Kelly was acquitted on state child pornography charges. A third co-defendant, Milton Brown, was acquitted of receiving child pornography.
Such motions are exceedingly rare and do not often succeed, in large part because defendants who are acquitted of criminal charges do not have a right to compensation. In his motion, Brindley said prosecutors knew the testimony of two key witnesses was “necessarily incoherent.”
“This is, by definition, a reckless disregard for the truth, which constitutes a frivolous and vexatious position by the government,” he wrote. “This entitles Mr. McDavid to reasonable attorney’s fees.”
During the trial, prosecutors maintained there was compelling evidence that McDavid was aware that Kelly was producing child pornography and that he sought for years to conceal evidence of what Kelly was doing.
Brindley said McDavid still owes $600,000 in legal fees and “must now liquidate real property and other assets in an attempt to pay.” Brindley also wrote that he and others spent at least 1,220 hours working on the case and that adds up to about $65,000 less than what a “reasonable market rate” of $750 an hour would cost a client.
Kelly has not yet been sentenced in the Chicago federal case, but he was sentenced earlier this year to 30 years in prison for a federal conviction in New York on racketeering and sex trafficking charges.
This is The Legal Beat, a weekly column about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings, and all the fun stuff in between.
This week: Cardi B goes to trial in a weird case over a bawdy album cover, Gunna is again refused bond in Atlanta, Ed Sheeran warns that a copyright ruling might “strangle” future songwriters and much more.
THE BIG STORY: Cardi Heads to Trial Over Bawdy Album Cover
In one of the weirder cases you’ll ever hear about, Cardi B is headed to a federal courthouse today to defend against claims that the cover of her debut mixtape “humiliated” a man named Kevin Brophy, who alleges he was unwittingly photoshopped into the artwork to make it look like he was performing oral sex on the now-superstar.Yes, you read that right. And I didn’t even tell you yet that the entire thing hinges on a giant back tattoo featuring “a tiger battling a snake.”As Cardi’s star was rising in 2016, she released Gangsta Bitch Music Vol. 1 with a provocative cover – an image of her swigging a beer, staring into the camera … with a man’s head between her legs. The actual guy in the image was a model (who consented to the whole thing), but the giant tattoo on his back belonged to Brophy (who didn’t). 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.Years later, the two will now square off before a jury over whether the image broke the law, and whether Cardi herself is to blame.Brophy claims the star and others violated his right of publicity by using his likeness without his consent, and also invasion of his privacy by casting him in a “false light” that was “highly offensive” to a reasonable person. He claims he was “devastated, humiliated and embarrassed” by the cover.Cardi says those accusations are “sheer fantasy” and “vastly overblown.” Her legal team says Cardi had no idea Brophy’s image was being used, and that he’s just suing her in an effort to “cash in the legal equivalent of a lotto ticket.” But their chief argument is even simpler: That nobody would have ever recognized a relatively unknown person based on a cropped image of his back tattoo.“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,” Cardi’s lawyers wrote.Cardi is expected to testify at some point, with a verdict expected by the end of the week or early next week. We’ll keep you posted over at Billboard.com when the news drops.
Other top stories this week…
VLOGGER BETTER HAVE MY MONEY – Elsewhere in Cardi-world, a federal judge ruled that Tasha K – a gossip blogger who made salacious claims about the star – must either immediately pay up on an almost $4 million defamation verdict or secure a bond covering the entire amount. Tasha is currently appealing the verdict and wanted to pause the judgement while she does so, but Cardi’s lawyers warned last month that the YouTuber had bragged about taking steps to “insulate herself” from the huge damages award, and might use the delay to avoid paying entirely.GUNNA DENIED BOND YET AGAIN – For a third time, a Georgia judge refused to release Gunna from jail ahead of his January trial in the sweeping case against Young Thug and others accused of operating a violent gang in the Atlanta area. The order came after prosecutors claimed to have text messages in which a co-defendant in the sprawling case offered to “whack someone” on the rapper’s behalf, prompting the judge to say that he had the “same concerns” about the potential for witness tampering. But just a day later, Gunna’s lawyers cried foul, claiming the alleged smoking gun text actually had “nothing to do with witness intimidation” and had been used to mislead the court.SHOTS FIRED OVER POWERHOUSE MUSIC LAWYER – In an exclusive interview with Billboard’s Frank DiGiacomo, Rolling Stone founder Jann Wenner blasted the Rock & Roll Hall of Fame for its upcoming induction of powerhouse music lawyer Allen Grubman, saying it was “about money and bending to the ego of a music business power broker.” Grubman is one of the most powerful attorneys in the industry, counting Bruce Springsteen, Lizzo, The Weeknd, Lil Nas X, Lady Gaga and other stars as clients, as well as major music companies and digital streamers. But Wenner said he decided to speak out because he believes Grubman clearly doesn’t fit the criteria: “Grubman has made no contribution of any kind, by any definition, to the creative development or the history of rock & roll.”WARHOL & PRINCE AT SCOTUS – More than three decades after Andy Warhol‘s death and six years after Prince‘s sudden passing, the two pop culture icons took center stage at U.S. Supreme Court , as the justices heard arguments in a major copyright case. At issue in the dispute is whether the late Warhol made a legal “fair use” of a photograph of Prince when he used it as the basis for a set of his distinctive screen prints – or merely infringed the copyrights of Lynn Goldsmith, the photographer who snapped it. During the proceedings, the justices grappled with tough questions, like what exactly is necessary to “transform” a copyrighted work into a fair use. In a lighter moment, Justice Clarence Thomas disclosed that he had been a fan of Prince’s music “in the ’80s,” to which Justice Elena Kagan asked “no longer?” As the room erupted in laughter, Thomas replied enigmatically: “Only on Thursday night.”ED SHEERAN WARNS OF ‘STRANGLED’ SONGWRITERS – The pop star’s lawyers asked a federal judge to rethink a recent decision that said the singer must face a trial over whether “Thinking Out Loud” infringes Marvin Gaye‘s “Let’s Get It On.” The decision came two weeks after Judge Louis Stanton refused to toss the case out, ruling that a jury would have to decide Sheeran’s argument that he only borrowed basic, unprotectable musical “building blocks.” In the new filing, the star’s lawyers warned the judge that forcing musicians to face trials over such material would have a chilling effect on the industry and threaten to “strangle creation” by future songwriters. In technical terms, Sheeran’s attorneys want the judge to either undo the ruling entirely, or allow them to immediately appeal it before he faces trial.SLACKER HIT WITH HUGE UNPAID ROYALTY BILL – A federal judge ruled that streaming platform Slacker owes nearly $10 million in unpaid performance royalties to record labels and artists. SoundExchange, which collects streaming royalties for sound recordings, sued Slacker and parent company LiveOne in June, claiming they had refused to pay millions over a five-year period. This week, Judge André Birotte Jr. made it official, ordering that Slacker pay $9,765,396 in unpaid royalties and late fees. Importantly, he also banned the company from using the so-called statutory license – a key copyright provision that allows radio-like streamers to get easy access to licenses at a fixed rate. Now, Slacker will presumably need to negotiate direct licenses from rights holders for sound recordings, similar to what on-demand streaming services like Spotify must do.
Lawyers for George Floyd’s family say they’re getting ready to file a lawsuit against Ye, the artist and entrepreneur formally known as Kanye West, seeking $250 million in damages over his recent claims that Floyd died of a fentanyl overdose rather than at the hands of police.
Attorneys for Roxie Washington, the mother of Floyd’s daughter, said Tuesday (Oct. 18) that they plan to sue West for harassment, misappropriation, defamation and infliction of emotional distress over the rapper’s controversial statements, which he made during an appearance on the Drink Champs podcast.
“George Floyd’s daughter is being retraumatized by Kanye West’s comments and he’s creating an unsafe and unhealthy environment for her,” said Nuru Witherspoon, Washington’s attorney. “Kanye’s comments are a repugnant attempt to discount George Floyd’s life and to profit from his inhumane death. We will hold Mr. West accountable for his flagrant remarks against Mr. Floyd’s legacy.”
The case will be filed by Washington on behalf of her daughter with Floyd, the attorneys said. It’s unclear when or where the case will be filed. The attorneys said they would seek $250 million in damages, but such claims have little bearing on what is actually awarded at the end of a successful lawsuit.
Washington is represented by Witherspoon’s firm, as well as another firm called Dixon & Dixon.
West could not be reached for comment on the looming litigation.
Floyd, whose May 2020 death sparked national demonstrations against police brutality, was killed by Minneapolis police officer Derek Chauvin, who knelt on his neck for nine minutes while Floyd was handcuffed and lying face down on the street, suffocating him to death. Chauvin was later convicted of second-degree unintentional murder, third-degree murder and second-degree manslaughter.
But in an interview released this weekend by Drink Champs, a popular podcast hosted on Sean “Diddy” Combs’ Revolt media channel, West said he saw things differently: “They hit him with the fentanyl. If you look, the guy’s knee wasn’t even on his neck like that.”
Drink Champs host N.O.R.E., who conducted the interview, has already apologized for the episode, and the episode has been pulled from both Revolt’s site and its YouTube channel.
Multiple cases against Kanye are now potentially in the works by Floyd’s family. On Sunday, civil rights attorney Lee Merritt posted to Twitter that he had been alerted to the comments Floyd’s brother, Philonise Floyd, and was considering how to bring a case against West.
“While one cannot defame the dead, the family of #GeorgeFloyd is considering suit for Kanye’s false statements about the manner of his death,” Merritt tweeted. “Claiming Floyd died from fentanyl not the brutality established criminally and civilly undermines & diminishes the Floyd family’s fight.”
West’s comments about Floyd came amid a storm of controversy for the once-beloved rapper. First he wore a “White Lives Matter” T-shirt to a show at Paris Fashion Week, then he was banned from both Instagram and Twitter over a string of anti-Semitic statements. Later in the same Drink Champs interview, he made more attacks on Jewish people, claiming they control the media and blaming “Jewish Zionists” for coverage about his ex-wife Kim Kardashian and her former boyfriend Pete Davidson.
An inductee of the Rock & Roll Hall of Fame is protesting one of the Hall’s upcoming inductions. Complicating matters is that the protest comes from Jann S. Wenner, the founder of Rolling Stone and a co-founder and former chairman of the Rock & Roll Hall of Fame Foundation, who was himself inducted into the institution as a non-performer in 2004, when he was a recipient of the Ahmet Ertegun Award.
Wenner says that entertainment attorney Allen Grubman, who is also a founding board member and set to receive the Ertegun award next month, does not meet the Hall’s criteria for the honor. “Allen Grubman has made no contribution of any kind, by any definition, to the creative development or the history of rock & roll,” says Wenner. “He has been chosen because of his clout as entertainment super lawyer. This decision is about money and bending to the ego of a music business power broker.”
Grubman — long one of the most powerful attorneys in the music industry — counts Bruce Springsteen, Lizzo, The Weeknd, Lil Nas X, J Balvin, U2, Mariah Carey, the David Bowie estate, Lady Gaga and Madonna among the clients of his firm, Grubman Shire Meiselas & Sacks, as well as Spotify, Live Nation, and the major record companies and music publishers. He will be one three recipients of the Ertegun award at the Rock & Roll Hall of Fame induction ceremony on Nov. 5 in Los Angeles along with Interscope Records co-founder/CEO Jimmy Iovine and Sugar Hill Records founder Sylvia Robinson, who will be inducted posthumously.
Grubman was nominated by Jon Landau, who, in addition to being a founding board member of the hall of fame and the head of its nominating committee, is the manager of Springsteen, a client of Grubman’s firm. Landau — who began his career as a rock critic — and Wenner have been friends and allies since the beginnings of Rolling Stone, as Wenner details in his recent memoir, Like a Rolling Stone. Wenner also takes aim at Grubman in his book in passing, saying the lawyer “didn’t know Jerry Lee Lewis from Jerry Lewis.”
“Jon remains one of my oldest and best friends,” Wenner told Billboard. “But we completely disagree about this. We have different agendas. Mine is the integrity of the Rock & Roll Hall of Fame. Jon has got a business relationship to maintain.” And that relationship, he adds, constitutes a “conflict of interest” when it comes to Landau’s endorsement of Grubman.
The Rolling Stone founder decided to go public with his dissatisfaction after Billboard contacted him about a passage in his memoir detailing his decision to retire as chairman of the Rock & Roll Hall of Fame Foundation at the beginning of 2020 (both Billboard and Rolling Stone are owned by Penske Media Corp.; Wenner no longer has a full-time role with the magazine he founded). “My only worry was the pressure to compromise the integrity of the nominating and voting. I should have known better,” wrote Wenner, who remains a board member. “After I resigned, I was told that music business power-brokers on the board were going to be inducted. These individuals had made not one iota of difference to the history, present or future of the creation of music, which was the explicit criterion. But they had accumulated influence and wealth. It was an inside job.”
Allen Grubman at New World Stages at Worldwide Plaza in New York City.
Michael Kovac/GI for NARAS
Wenner doesn’t name anyone in his book, but in May, the Rock & Roll Hall of Fame announced that Grubman, who is a founder and board member, would receive the Ahmet Ertegun Award, which, according to the organization’s website, is given to “non-performing industry professionals who, through their dedicated belief and support of artists and their music, have had a major influence on the creative development and growth of rock & roll and music that has impacted youth culture.”
When Billboard contacted Wenner about the passage, he confirmed that he was referring to Grubman.
This year’s Ahmet Ertegun Award inductees were chosen for the first time by a committee formed by the hall of fame foundation’s current chairman, iHeartMedia president of entertainment enterprises John Sykes. He is a committee member along with Landau (who also heads the hall’s nominating committee); Jody Gerson, the chairman/CEO of Universal Music Publishing Group; Jon Platt, chairman/CEO, Sony Music Publishing; Rob Light, the head of CAA’s music department; and Joel Peresman, president/CEO of the foundation. A hall of fame insider says that in past years the Ertegun inductees were chosen via a “consensus decision” that included Wenner, Landau, and musicians Paul Shaffer and Robbie Robertson. The source adds that the creation of a formal committee had been Wenner’s suggestion, although Wenner had wanted more people outside of the industry, such as music historians and artists.
According to one source familiar with the situation, “Wenner presented his case against Allen to the full committee” in a “a lively 20-minute debate” during which all of the committee members got to express their views. Multiple sources confirm that the subsequent vote was five-to-one in favor of Grubman’s induction with Wenner casting the sole dissenting vote. (The committee voted unanimously to induct Iovine and Robinson.)
Wenner’s account of the proceedings is significantly different. He says that the discussion and vote regarding Grubman’s induction “was no more than a 45-minute phone call, and prior to that call, I was told by Jon that my dissent would be useless. The issue was already settled,” he says.
In response, the source says, “It is generally routine for committee members to discuss how they would likely vote on different issues before a meeting and how an upcoming vote will likely go.”
Another source familiar with the committee’s voting process says Grubman’s induction is justified because he is “one of the all-time great dealmakers, but his impact and those of the next generation of agents and lawyers who followed him, is not always appreciated.” The source contends that Grubman’s decades of “staunch advocacy and success in negotiating groundbreaking deals for these artists changed the balance of power in the industry,” providing the artists he has represented “the security and stability that allowed them to focus on their craft.”
Wenner says the argument that Grubman “is responsible for historic changes in recording artists’ contractual relationships with record companies is ex-post facto hogwash. This is an artful but disingenuous fig leaf to cover the absence of a valid reason. It is putting lipstick on a pig.”
Wenner says that inducting Grubman into the hall of fame is the equivalent of giving former CAA founder and Disney studios chief Michael Ovitz an Oscar. “The underlying and inescapable truth is that he has not made one iota of difference then, now or for the future of rock & roll,” he says. “He doesn’t make music. He makes money.”
A statement issued by the foundation did not address Wenner’s allegations directly but instead adopts language the hall of fame’s website uses to describe its criteria for the Ahmet Ertegun award: “The Rock & Roll Hall of Fame relies on a diverse group of expert music professionals and artists to select those who are inducted each year. We welcome this year’s group of very well deserving inductees and congratulate them on their significant influence on the music and artists that have moved youth culture.” Grubman, Landau, and spokespersons for Light and Platt declined to comment. Sykes, Peresman and Gerson did not respond to requests for comment.
But one source with ties to the organization says, “This is just Jann being Jann. After all of his great contributions, it’s sad that he’s making these unnecessary personal attacks to bring attention to himself.”
“That is a personal attack,” says Wenner. “Why can’t they defend themselves?”
Streaming platform Slacker owes SoundExchange nearly $10 million in unpaid performance royalties, according to a recent ruling by a federal judge, issued after settlement talks between the two broke down.
SoundExchange, which collects streaming royalties for sound recordings, sued Slacker and parent company LiveOne in June, claiming they had refused to pay millions over a five-year period. As recently as September, court documents indicated the two sides were having “meaningful settlement negotiations.”
But last week, SoundExchange played an unusual legal trump card: A pre-signed consent judgment, inked by execs at Slacker back in 2020 as part of a previous effort to get the streamer to pay its royalty bill. Under the terms of that earlier deal, if Slacker ever defaulted again, its executives agreed that a judge should enter a judgment against the company for the full sum owed.
On Thursday, Judge André Birotte Jr. did exactly that – ordering Slacker to pay $9,765,396 in unpaid royalties and late fees. He also permanently barred the company from using the so-called statutory license, a federal provision that makes copyright licenses for recorded music automatically available to internet radio companies like Slacker and Pandora at a fixed price.
Without access to the statutory license, Slacker will presumably need to negotiate direct licenses from rights holders for sound recordings, similar to what on-demand streaming services like Spotify must do.
A spokesman for Slacker and LiveOne did not return a request for comment on Tuesday. In a statement to Billboard, SoundExchange president and CEO Michael Huppe said the lawsuit demonstrated that the group “takes our role in defending fair compensation for creators seriously.”
“Despite a prior agreement, multiple promises, and repeated negotiations, Slacker and LiveOne failed to pay properly for the music – on which the companies built their business model,” Huppe said. “It is regrettable that this step became necessary, but we will not back down when it comes to protecting creators and ensuring they are well-represented and properly paid under the law.”
We Can[‘t] Work It Out
In its lawsuit, SoundExchange claimed Slacker stopped paying recording royalties way back in 2017, and that a subsequent audit revealed it had been underpaying for years before that. In 2020, the two sides entered into the repayment plan, which gave Slacker two years to pay its debts. But in the June lawsuit, the SoundExchange claimed that Slacker quickly failed to live up to the plan.
“By refusing to pay royalties for the use of protected sound recordings, Slacker and LiveOne have directly harmed creators over the years,” Huppe said at the time. “Today, SoundExchange is taking a stand through necessary legal action to protect the value of music and ensure creators are compensated fairly for their work.”
Though SoundExchange clearly had the earlier agreement as leverage, it appears the two sides tried again to work out a settlement. In early September, attorneys for Slacker asked for more time, saying that the two sides were engaged in “ongoing meaningful settlement negotiations with the expectation that a settlement would be reached.” But they said such talks had not been easy.
“The negotiations have proven to be complicated. There have been a number of offers, back and forth, and numerous emails, calls and discussions,” wrote Jeffrey A. Katz, Slacker’s outside counsel. “A final resolution appears promising but is not guaranteed. Defendants would like to remain focused on their pursuit of a negotiated resolution.”
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.