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.
CMDA Law
Recent Posts
- Jim Acho Named 2024 MiLW Leader in the Law
- Richards’ Article on the Benefits and Challenges of the Ladybird Deed Featured in Urban Aging News
- Jim Acho Guests on “SportsWise” with NFL Network’s Gabe Feldman to Break Down NCAA Lawsuit
- Important Reminder: Under the CTA, a BOIR is Required to be Filed by January 1, 2025
- Jim Acho Guest At Premier For New Detroit Lions Book
Recent Comments
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- November 2021
- October 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- July 2012
- June 2012
- May 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- June 2011
- March 2011
- February 2011
- October 2010
- August 2010
- January 2010
- January 2009
- September 2008
- June 2008
- May 2008
Categories
- 50th Anniversary
- Allan C. Vander Laan
- Appeals and Litigation
- Appeals and Litigation Articles
- Barbara M. Moore
- Business Law
- Business Law Articles
- Carol A. Smith
- Christopher G. Schultz
- Community Association & Real Estate Law Practice Group
- Community Association and Real Estate Law Articles
- Community Association Law
- Daniel W. Ferris
- Douglas Curlew
- Education Law
- Education Law Articles
- Employment and Labor Law
- Employment and Labor Law Articles
- Estate Planning and Elder Law
- Estate Planning and Elder Law Articles
- Firm News
- Gary D. Klein
- Gerald C. Davis
- Gregory A. Roberts
- Gregory R. Grant
- Haider A. Kazim
- Insurance Defense
- Insurance Defense Articles
- Isa M. Kasoga
- Jacklyn P. Paletta
- James R. Acho
- James W. Taylor II
- Jeffrey R. Clark
- Joel Ashton
- John "Jay" Gillen
- John D Gwyn
- John M. McFarland
- Joshua J. Cervantes
- Kenneth M. Gonko
- Kevin J. Campbell
- Kimberly M. Coschino
- Kristen L. Rewa
- Latest News
- Law Enforcement Defense and Litigation Articles
- Law Enforcement Litigation and Defense
- Linda Davis Friedland
- Litigation
- Margaret A. Lourdes
- Matthew C. Wayne
- Matthew W. Cross
- Michael O. Cummings
- Michelle L. Richards
- Municipal Law
- Municipal Law Articles
- News & Events for Business Law
- News & Events for Municipal Law
- News Archive
- Norman E. Richards
- Owen J. Cummings
- Patrick R. Sturdy
- Plaintiff's Personal Injury
- Plaintiff’s Personal Injury Articles
- Presentations & Articles
- Published Articles
- Ray E. Richards II
- Real Estate Law
- Robert J. Hahn
- Robert L. Blamer
- Ronald G. Acho
- Ryan D. Miller
- Sarah L. Overton
- Shane R. Nolan
- Stanley I. Okoli
- Stephen C. Johnston
- Suzanne P. Bartos
- Timothy S. Ferrand
- Uncategorized
- Utility Law
- Utility Law Articles
Leave a Reply