Attorney James Taylor Offers Insight and Analysis on Intellectual Property Case

Rapper Cardi B recently defeated a tort and intellectual property lawsuit for misappropriation of likeness and invasion of privacy for using a picture of a heavily tattooed man, without his permission, as the subject of her album cover picture.

The creator of the album cover skewed and altered an innocent picture of Plaintiff Kevin Brophy, where he is simply showing off his tattoo, to create an entirely different scenario. Critically, Brophy never consented to having his likeness used, including his unique tattoo. He complains that the album cover has humiliated him for years. Additionally, he complains that his tattoo, which he considers unique and covers his entire back, has been tainted. The question presented by this lawsuit addressed if Cardi B wrong to use Brophy’s image, including his unique tattoo on her album cover, without Brophy’s permission.

Brophy argued a misappropriation of likeness theory, like traditional intellectual property copyright theories, that Cardi B was wrong to use the image. However, Cardi B testified that all that people cared about on that album cover was her face, not the tattoo. In my opinion, Cardi B’s comments run counter to why the digital artist would have chosen Brophy’s tattoo in the first place: because Brophy’s tattoo was incredible, unique, and fit the image that Cardi B’s team was trying to create for her. After all, Cardi B has made a name for herself as (her words), “a gangsta from the hood.” Brophy’s full-body back tattoo fits that image. Clearly, this was the intent on using the image with Brophy’s back tattoo in full display, as opposed to any other back.

Brophy also argued that Cardi B invaded his privacy by casting him in a false light. Because of tattoo’s inherently unique character, the image of Brody’s back arguably uniquely identifies him. Moreover, if the light Cardi B is trying to cast on herself as “gangsta,” then that light would reasonably be cast on Brophy. Brophy argument concludes that because Brophy is far from a “gangsta,” then it does identify him in a false light.

Direct copyright infringement was not a theory argued by Brophy, but it may have been a persuasive intellectual property theory for Brophy’s tattoo artist if he had sued instead. Copyrights with tattoos have a unique analysis. Who really owns the copyright to a unique tattoo? Is it the person that described the tattoo and paid the artist to draw it? Or is it the artist himself? This was subject to a litigation in 2016 over a video game “NBA 2K16” reproducing tattoos on famous basketball players, like LeBron James and the late Kobe Bryant. Solid Oak Sketches, LLC, a tattoo parlor that had created several of those tattoos, sued 2k Games, Inc. over this issue. Ultimately, the U.S. District Court for the Southern District of New York held that, consistent with the general principal, the copyright was indeed retained by the artist. But even though the tattoo artist held the copyright, the court found for the video game company for three reasons: (i) the use was de minimis, (ii) someone getting a tattoo receives an implied license to use and display the tattoos as part of their likeness, and (iii) the use of the tattoos in video games is fair use.

Applying the results of the Solid Oak Sketches v. 2k Games case to the Brophy v. Cardi B situation, I note several important observations. First, the analysis for de minimis is entirely different. Indeed, there is a strong argument that the entire reason that Brophy was picked was because of how important the tattoo was. The is the extreme opposite of de minimis. Moreover, a tattoo being on a few players is of little importance in a sport’s video game. But Brophy’s image covers 10-20% of the Cardi B album cover and was chosen because of the tone it conveys. And therefore, the de minimis doctrine would probably be a losing defense. Second, Brophy never gave permission to use his likeness. This contrasts with professional athletes who sign contracts to allow their team’s owners and leagues to use their likeness in promotions, video games, and similar as part of their contract. So, this defense would probably fail too. And third, fair use may fail for the same reason the de minimis defense failed above.

Overall, while the jury ultimately did not find for Brophy’s tort theories but may have found for Brophy’s tattoo artist under traditional intellectual property copyright theories. But even though Brophy lost, this does not mean that his case was without merit. Understanding precisely why he lost is probably something that we will never understand.

If you need an intellectual property attorney or litigator, it is in your best interest to find an experienced attorney that you can trust. At CMDA, we pride ourselves on our professional demeanor, diligent advocacy, and attention to details. Call us at (734) 261-2400 today to see if we can assist you.

James W. Taylor II is an attorney in our Livonia office where he focuses his practice on patent prosecution, intellectual property law, intellectual property litigation, complex litigation, commercial litigation, and business law.

Mr. Taylor has over 10 years of experience in patent prosecution. He started his career for the United States Patent and Trademark Office as a Patent Examiner and Patent Classifier, where he gained exposure to internal practices of the Patent Office. At the Patent Office, he examined specialty polymer materials in classes 523-524, including thermal insulators for rockets, revulcanization processes for recycling tires, and drag reducing agents for oil pipelines. Since leaving the Patent Office, he has obtained hundreds of patents for inventions for both Fortune 100 businesses and independent inventors. Some representative areas that he has drafted and prosecuted applications include: batteries, atomic layer and chemical vapor deposition systems, firearms, cellular and wireless communications, autonomous vehicles, software, lasers, vehicle components, bioremediation devices, and personal lubricants. In addition to patent prosecution, Mr. Taylor also works in complex litigation, intellectual property litigation, business litigation, and employment litigation, where he is an accomplished brief writer, having drafted dozens of favorable dispositive motions.