A federal judge in California rejected the appeal of Kevin Brophy, the man who sued Cardi B for allegedly using a photo of his back tattoo as her album cover.
Brophy had vowed to appeal the judgment handed down in October on grounds of facts and law. However, U.S. District Judge Cormac J. Carney rejected the appeal noting that the back tattoo had “a minor role in what was a larger visual commentary on sexual politics,” and upheld the previous trial court’s ruling that the cover art fell within the realms of “transformative” art as argued by Cardi B.
Judge Carney ruling on Wednesday said that Brophy’s appeal was filed out of time, and he also didn’t have proper grounds to challenge the trial court’s judgment. Brophy’s loss at both courts means that he will now have to pay Cardi B’s lawyer’s fees and costs.
Brophy had originally sued Cardi B for illegally appropriating his back tattoo, and he had wanted $5 million in damages for the copyright infringement. His argument had withered, however, as Cardi B’s legal team offered that the rapper did not take his tattoo and that the man on the cover was not the same in terms of race. Also, the rapper argued that Brophy did not even own the copyrights to the tattoo he had on.
He also didn’t substantiate his claims of embarrassment and shame in the lawsuit, where he said he and his wife were embarrassed as his tattoo was recognizable and they were embarrassed that the photo implied he was performing fellatio on the Bronx rapper.
In his appeal, he challenged the verdict by the jury that they misunderstood the law. However, Judge Carney’s ruling explained that Brophy and his lawyers did not satisfy a Rule 50 motion that was to be made before the case went to the jury for deliberation.
“The untimeliness of Brophy’s Rule 50 is reason enough to deny it. But the motion also wants for substantive merit,” Rolling Stone quoted the judge.
The judge affirmed the testimony that the man on the album cover was a “model [who] appears non-white with black hair while Brophy is white and has a shaved head.”
The judge also focused on the entire cover art and not just Brophy’s tattoo noting that the portrayal of the cover was more about sexual commentary and sexual politics and had more focus on the act itself rather than Brophy’s tattoo.
The judge also touched on Brophy’s claims that his tattoo was responsible for the album’s commercial sales, as Cardi B testified it barely made her any money.
“The purpose, Cardi B testified, was to show her in control, reversing traditional gender roles,” the judge affirmed. “It is hard to see how the cover’s economic value derived at all from Brophy’s tattoo. Despite any contrary evidence that Brophy presented, the jury was within reason to find that the use of the tattoo was transformative.”
