United States: The Man With The Tiger (And Snake) Tattoo Redux

Last year, I blogged about a lawsuit – one of my all-time favorites – in which Kevin Brophy (a Californian who works at a surfing and lifestyle company) sued Cardi B (described in the complaint, rather anachronistically, as "an entertainer from the Bronx who dabbled in reality television"), alleging that the cover art for Cardi B's 2016 mixtape Gangsta Bitch Music, Vol. 1 includes a photograph of a model with an elaborate back tattoo that is uncannily similar to the tattoo that Brophy sports. Mr. Brophy brings claims for (1) misappropriation of likeness or identity, (2) violation of California Civil Code § 3344, and (3) invasion of privacy (false light). Brophy is seeking $5 million in damages.

Here, again, are the album art and a photograph of Brophy's back (both from the complaint):

Brophy claims that his job (much like mine) requires him to "wear board shorts but no shirt regularly" and that, as a result, his often-exposed back tattoo has become "a unique feature recognized by his friends, his business, and the surfing community." Perhaps to support the notion that his fame (and that of his majestic tattoo) extends far beyond the Orange County community where he resides, Brophy boasts that his Instagram profile has nearly 10,000 followers. (He'd have one more if I could figure out which is his official account.) And, needless to say, Brophy finds this portrayal of his "likeness" – in his words, as a mere "sex toy" for Cardi B – to be highly offensive. He claims to be particularly distressed by the need to explain the cover to his son, a matriculant at a Christian pre-kindergarten school, each time the inquisitive lad brings up the topic.

In an earlier decision (the subject of my prior post), the court (located in California) ordered discovery on whether it could assert personal jurisdiction over Cardi B (who, you may be surprised to learn, is a citizen of the great state of New Jersey) and whether it had subject matter jurisdiction to hear this diversity case (specifically, whether the amount in controversy exceeds the jurisdictional threshold of $75,000). Following discovery, the defendants renewed their motion to dismiss for lack of personal jurisdiction, lack of subject matter jurisdiction, and a failure to state a claim.

In its latest decision, the court denied the defendants' motion in all respects. A quick summary:

  • On the jurisdictional questions, the court found both that it could assert personal jurisdiction over Cardi B (including because her efforts to publicize the album occurred, and were aimed at citizens, in California) and that it had subject matter jurisdiction over the case (because it was not a "legal certainty" that Brophy's claim was really for less than $75,000).
  • The court found that Brophy had alleged "plausible" claims for violation of his common law and statutory right of publicity, based on his allegation that "his tattoo is part of his likeness because it is unique and distinctive." The court rejected the defendants' argument that, as a matter of law, Brophy could not prevail unless his name or his face had been used recognizably. In addition, the court refused to consider Cardi B's defense that the use of Brophy's "likeness" was "transformative" (under Comedy III Productions, Inc. v. Saderup and its progeny) and protected by the First Amendment. In the court's view, this was a question of fact that could not be adjudicated on a Rule 12(b)(6) motion.
  • The court also found that Brophy had stated a "plausible" false light claim: specifically, that the defendants had "falsely misrepresented plaintiff having sex with Cardi B on the cover of Gangsta Bitch," that this false light would be highly offensive to a reasonable person, that the defendants had acted with actual malice, and that he had suffered damages as a result.
  • Finally, the court found that Brophy's publicity and false light claims were not preempted by Section 301 of the Copyright Act. Applying the familiar two-part test for determining whether copyright law preempts a state law claim, the court determined that (1) the subject matter of Brophy's state law claims did not fall within the subject matter of copyright because the claims revolved around the use of his likeness, which is "not a work of authorship within the meaning of 17 U.S.C. § 102," and (2) the rights asserted under Brophy's state law claims were not equivalent to the exclusive rights of copyright holders under the Copyright Act.

A detailed examination of the juicy merits will have to await another day. Will Mr. Brophy ultimately be able to prove that his back tattoo, in fact, constitutes a "likeness" that identifies him? Will he be able to prove that the use of this "likeness" on album art is, in fact, "commercial"? And will he be able to withstand Cardi B's defense that any use of this "likeness" was transformative and protected by the First Amendment? Time will tell (if the case doesn't settle).

In the meanwhile, if you are hungry for more, here are two links, each of which (warning!) contains content that some would find unsuitable for a family-friendly blog like this one:

First, Eriq Gardner's Hollywood Reporter article includes some saucy quotes from Cardi B's deposition testimony. Suffice to say that one thing that Cardi B likes a heck of a lot less than checks is having her time wasted on this lawsuit.

Second, Brandon Walczak, who claims to be the model in the cover art, posted this video in which he also has some choice words for Mr. Brophy.


This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions