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Man who sued over Cardi B mixtape cover featuring his tattoo wants another trial
By Chris Cooke | Published on Friday 27 January 2023
The man who unsuccessfully sued Cardi B over her use of a photo of his distinctive back tattoo on the artwork for a 2016 mixtape has requested another trial to consider his legal claim. That’s based on the argument two prejudicial errors of law occurred during the original court hearing.
Kevin Brophy sued Cardi B – real name Belcalis Almánzar – in 2017. A photo of his distinctive tattoo was Photoshopped onto the cover of the ‘Gangsta Bitch Music Vol 1’ mixtape, so that it appeared on the back of a man who was positioned to look like he was performing oral sex on the rapper.
Neither Almánzar nor her team got permission from Brophy to use the image of his tattoo. He argued that people assumed it was him in the photo, and – given the explicit nature of the artwork – that had resulted in him facing frequent “uncomfortable comments, questions, and ridicule from community members and family”.
Legally speaking, he reckoned his publicity rights had been infringed by the authorised use of his image.
In the resulting court case there was much debate over whether Almánzar had any real involvement in the creation of the artwork; whether anyone had actually connected Brophy to the image before he started talking about it; and – perhaps most importantly – whether the use of Brophy’s tattoo design on the mixtape cover was ‘fair and transformative use’ and therefore allowed under US free speech laws.
The jury hearing the case ultimately sided with Almánzar, concluding that Brophy’s publicity rights had not been infringed by the mixtape artwork. At the conclusion of the trial things seemed amicable between the two sides in the dispute, with Brophy reportedly shaking Almánzar’s hand and confirming he respected her as an artist.
But, it seems, that didn’t mean the legal dispute was at an end. In a new legal filing, Team Brophy want last year’s judgement set aside and another trial to consider the case, because of these “prejudicial errors” which they claim occurred first time round.
“First, plaintiff was deprived of his fundamental and substantial right to cross-examine Cardi B at trial”, Brophy’s new filing states.
“Defendants were permitted to elicit testimony from her on direct examination, and plaintiff was not permitted to cross-examine her, leaving the credibility of a key party witness to remain unchallenged and unimpeached. When the right to cross-examine has been denied, or even unduly restricted, harm is presumed, the prejudice is undeniable, and new trial is required”.
Secondly, Brophy takes issue with a surprise decision during last year’s trial to “exclude crucial and relevant testimony of Cardi B from a defamation trial which took place in federal court in Atlanta, Georgia in January 2022”. That was the rapper’s legal battle against YouTuber Latasha Kebe, testimony from which the Brophy side wanted to bring up in court as part of their arguments.
“The claims in that case, in which Cardi B, as a plaintiff, sued for false statements made about her on the internet, are strikingly similar to the claims in this case”, the new legal filing says. “Plaintiff sought to examine Cardi B on her sworn testimony regarding the alleged injury she suffered due to the way she was being publicly portrayed”.
The court granted an oral motion from Almánzar’s lawyers to block all mention of her testimony in the defamation trial “without reviewing the testimony plaintiff sought to present and which defendants sought to exclude. The exclusion was in error, and substantially prejudiced plaintiff’s presentation of his case”.
In addition to the two allegedly prejudicial errors, Brophy’s new filing also states that “over the course of the trial, abundant evidence was presented demonstrating that defendants knowingly misappropriated plaintiff’s likeness, that plaintiff did not consent to that misappropriation, and that plaintiff suffered significant harm”.
“Despite this evidence”, it goes on, “the jury delivered a verdict for defendants. The jury’s verdict was against the weight of evidence, and a new trial is warranted”.
And, not only that, “the conduct of Cardi B on the witness stand not only prompted prejudicial error in denying cross-examination, but also substantially and prejudicially impacted plaintiff’s presentation of his case. Whether viewed independently or taken as a whole, the above errors and conduct of a defendant party witness rendered the trial fundamentally unfair to plaintiff, and a new trial should be ordered”.
We await to see if the court agrees.
