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.

www.fkks.com

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.

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