Cardi B to get $350K from tattooed man who lost lawsuit over 'Gangsta Bitch Music, Vol. 1' cover
The stipulation ends a 2017 federal lawsuit that accused the rapper of likeness misappropriation over a salacious image altered using a portion of a distinct tattoo.
A man who accused rapper Cardi B of misusing a photo of his tattoo on the cover to her debut mixtape will pay her $350,000 and withdraw his motion for new trial under an agreement filed Monday in federal court.
The deal follows U.S. District Judge Cormac Carney’s ruling in December that Kevin Michael “Mike” Brophy’s distinct back tattoo played only a small role in the cover art for Cardi’s 2016 mixtape, Gangsta Bitch Music Vol. 1, which the judge described as “a larger visual commentary on sexual politics.”
A jury in Santa Ana, California, last October rejected Brophy’s $5 million claims against Cardi, her company Washpoppin’ Co. and her former manager Klenord “Shaft” Raphael’s company KSR Group LLC over the mixtape cover, which features a man appearing to perform oral sex on Cardi as she drinks a bottle of Corona in the backseat of a car.
The man has a digitally imposed tattoo on his back that includes the exact tiger and serpent from Brophy’s tattoos, but it doesn’t include other features such as waves, rose petals or the phrase “Born to Lose.”
Cardi’s lawyers told jurors the changes transform Brophy’s tattoo into another piece of art that’s protected by the First Amendment. The jury deliberated about 90 minutes on Oct. 21 before siding with Cardi.
Brophy’s lawyers sought a reversal of fortune by asking Judge Carney to toss the verdict and rule in their favor, which led to Carney’s ruling that Gangsta Bitch Music, Vol. 1 is “a larger visual commentary on sexual politics.”
“Brophy’s tattoo was but one tattoo on the back of the model, who was himself but one part of a suggestive portrayal of a man with his head between Cardi B’s legs while she was in the backseat of a vehicle and drank an alcoholic beverage,” the judge wrote. “The purpose, Cardi B testified, was to show her in control, reversing traditional gender roles.”
Cardi said on the witness stand, “I wanted an image to be like, ‘I’m in control,’”
“Usually men are in control. I’m in control. The roles are reversed,” the 30-year-old international superstar testified. “… I’m not literally receiving oral in real life. It’s art work.”
After Carney backed the jury verdict, Brophy’s lawyers tried again by arguing in a motion for new trial that they weren’t allowed to fairly present their case to the jury. They focused in part on Carney’s restriction of Cardi’s examination.
The judge imposed a 30-minute limit on lawyer Barry Cappello’s exam after a chaotic back and forth between Cappello and Cardi that included him scolding her, “Do you want to be here all afternoon?” Carney also didn’t allow Cappello to ask more questions of Cardi after she was questioned by her lawyer.
Cappello and his co-counsel Larry Conlan said Carney’s halting of Cappello’s questioning allowed the jury to hear Cardi’s testimony about her faith and commitment to family without cross-examination “about her gang membership, and other questions concerning Ms. Almanzar’s other bad acts and criminal conduct,” referring to Cardi’s legal name, Belcalis Almanzar.
They also said Carney wrongly prohibited them from questioning Cardi about her federal defamation lawsuit against YouTuber Tasha K in Atlanta, which they wanted to do to try to argue Cardi should understand where Brophy is coming from.
Cardi’s lawyers never filed an official opposition to the motion, nor did they file a motion for attorney fees.
Instead, they worked out the deal that was announced on Monday.
“The parties now have reached an agreement avoiding the necessity of Defendants’ motion for attorney’s fees and application to tax costs and Plaintiff’s New Trial Motion, and that agreement includes the entry of the accompanying proposed Order withdrawing Plaintiff’s New Trial Motion, withdrawing any claim by Defendants for attorney’s fees and costs to be awarded other than as set forth in the Order, and waiving appeal rights,” according to the stipulation.
This is the order the attorneys want Judge Carney to sign:
The $350,000 likely covers only a small part of Cardi’s attorneys fees, which include money paid to an attorney in Santa Monica whose health problems led to a trial delay and an order from Carney that the rapper find new counsel.
Her trial team included Lisa Moore, the Atlanta-based lawyer who successfully tried the defamation lawsuit against Tasha K, and Peter Anderson and Jonathan Segal, who are partners at Davis Wright Tremaine LLP in Los Angeles. Anderson is one of the top music copyright lawyers in the country with a list of recent clients that includes The Weeknd, Led Zepplin, Taylor Swift, Ozzy Osborne, Gwen Stefani and Green Day.
But even considering the relatively small financial offering, Monday’s stipulation ends a case that had long been a source of annoyance for Cardi.
In testimony, she said she “worked my ass off with two kids these past years” while Brophy alleges her success is because his tattoo on her mixtape launched her career.
“It’s really insulting to me as a woman that a man is claiming responsibility,” Cardi said, adding: “When it’s my voice that has made me famous since 2014.”
“And that’s what got me here,” she continued. “Not Mr. Brophy’s portion of a tattoo.”
Cardi also testified, “There has been not one receipt he has provided in the court claiming, ‘Hey that’s you on Cardi’s mixtape.’”
“There is not one evidence where people believe it’s actually him,” she testified. “He hasn’t gotten fired from his job. He hasn’t gotten a divorce. How has he suffered? … Please tell me how he’s suffered.”
A married father of two, Brophy lives in Costa Mesa, California, and works for the surfing lifestyle company RVCA.
He testified that Cardi’s use of his tattoo “goes against everything I stand for” and was disrespectful to him and his family.
“It felt like my Michelangelo was stolen off a wall and literally ripped off, robbed, and put where ever these people wanted to put it,” he testified. He called the cover “a digital molestation.”
Brophy’s tattoo was inked by renowned tattooist Tim Hendricks, who first alerted him to the fact that a portion of it was featured on the Gangsta Bitch Music, Vol. 1 cover. Jurors saw a text message he sent Brophy that said someone had ripped off the tattoo “unless you grew hair.”
Cardi pointed out in her testimony that the message shows Hendricks knew at first glance that the man on the cover wasn’t Brophy. She also testified that man who posed with her for the cover “is a Black man that’s fit.”
“It’s not Mr. Brophy’s back. It doesn’t look like Mr. Brophy at all,” the rapper testified.
The four-day trial brought larger crowds of Cardi’s fans outside the courthouse each day, including students from the high school across the street from the courthouse.
Cardi retweeted my photo of a teenage boy holding a sign asking her to the school’s homecoming dance. The boy and about 30 of his classmates briefly ran into the courthouse lobby the morning of the last day of trial screaming and taking pictures and video.
After the verdict, Cardi’s former manager Shaft posted a video of himself and Cardi briefly celebrating in the courthouse hallway.
Students crowded Cardi as she tried to exit the building. She briefly spoke with TV reporters as people spilled out the open courthouse doors and teens shouted adorations.
“Really great lawyers on my team to the plaintiff’s team. Everybody was just amazing. It was a very interesting case, and I feel like everybody learned a lot,” she said. She also said, “I’m beyond grateful. Like, I even shed a tear, and I really don’t be crying.”
Then there was an actual literal walking mob that surrounded her as she tried to get to her vehicle to leave. I used the video below when presenting at a law conference in Chicago in March. My topic was “jury trials from a reporter’s perspective,” and I was making the point that just because a judge allows you to go long doesn’t mean you should.
Judge Carney did not impose time limits on the closing arguments, so they stretched on probably at least two hours longer than they should have. That pushed the quick verdict into the late afternoon and made it so everyone was getting out of court right when the high school across the street was letting out for the day. Which meant the journalists who’d covered the entire trial got pushed out by teenagers and didn’t get to talk to Cardi. (You can hear another reporter mutter to me, “This is so stupid,” after she emerges from the mob in the above video.)
After she left the courthouse, Cardi tweeted: “I just won this lawsuit …Im soo emotional right now …I wanna kiss Gods feet right now …..IM BEYOND GRATEFUL!!!!”
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