District court finds plaintiff adequately pleaded right of publicity and right of privacy claims under California law for unauthorized use on Cardi B album cover of image of his back covered by unique tattoo.
Plaintiff Kevin Michael Brophy Jr. sued American rapper and television personality Cardi B, KSR Group LLC and Washpoppin Inc. for misappropriating his likeness and for false light invasion of privacy, based on defendants’ use of an image of plaintiff’s unique snake and tiger tattoo that appears across his entire back. The cover of Cardi B’s “career launching mixtape” Gangsta Bitch Music Vol. 1 depicts Cardi B holding plaintiff facedown between her legs, with his “unique back tattoo and likeness featured conspicuously at the center of the image,” while Cardi B “drains a 24-ounce bottle of Corona Extra beer and stares lustfully into the camera.”
Plaintiff alleges that his friends and people in the “surfing and lifestyle” industry in which he works can instantly recognize him by his back tattoo. He claims he never met defendants and that he was “shocked, outraged, humiliated, and appalled” when he discovered the Gangsta Bitch cover. Plaintiff has allegedly been confronted with uncomfortable questions about the cover, and his wife and child allegedly experienced trauma as a result of the album cover.
After engaging in jurisdictional discovery, defendants moved to dismiss for lack of personal jurisdiction, lack of subject matter jurisdiction and failure to state a claim. The court first held that defendants were subject to personal jurisdiction in California based on their promotional efforts that were aimed directly at California. According to the court, defendants used plaintiff’s likeness because they knew that the “provocative and edgy” cover would boost Cardi’s notoriety and help sell music in California, which is a hub of the entertainment industry. The court also noted that defendants promoted Gangsta Bitch in California through distribution deals, industry events and live performances, and by using hashtags with names of California cities in promotional social media posts. Cardi B herself also made appearances at album launch parties, promotional events and performances throughout California. Defendants knew the harm they allegedly inflicted on plaintiff was likely to be suffered in California, the court found, in light of plaintiff’s connections to the entertainment and surfing industries in California.
The court also denied defendants’ motion to dismiss for lack of subject matter jurisdiction because the $75,000 monetary threshold for diversity of citizenship allegedly was not met. Plaintiff alleged that his damages exceeded $5 million, and discovery showed that defendants made more than $400,000 on sales of the album. The court therefore could not determine to a legal certainty that plaintiff’s claim was for less than the $75,000 jurisdictional threshold.
Finally, the court rejected defendants’ motion to dismiss for failure to state a claim. The court held that plaintiff stated a claim for misappropriation of likeness even though neither his face nor his name was used, as plaintiff alleges that his distinctive back tattoo is part of his persona. The court also held that plaintiff adequately alleged a violation of California Civil Code Section 3344, which provides that “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner . . . for purposes of advertising or selling . . . without such person’s prior consent . . . shall be liable any damages sustained by the person.” The court found that plaintiff alleged defendants knowingly used plaintiff’s likeness to advertise or sell the mixtape, and it found a direct connection between this use and the commercial purpose. At this stage, the court could not consider defendants’ arguments that they are entitled to the transformative use defense or that they did not knowingly use any likeness of plaintiff because a third party created the mixtape artwork, as those are issues of fact that cannot be decided on a motion to dismiss.
As to plaintiff’s claim for invasion of privacy, the court accepted plaintiff’s arguments that defendants showed him in a false light by falsely misrepresenting plaintiff having sex with Cardi on the cover of Gangsta Bitch. Plaintiff alleges this representation would be offensive to a reasonable person, as defendants portrayed plaintiff in a “misleading, offensive, humiliating and provocatively sexual way.”
Finally, the court held that the Copyright Act does not preempt plaintiff’s claims. Plaintiff’s claims do not fall within the subject matter of copyright, as they pertain to the use of his likeness and persona and the dissemination of false and offensive material about him, not merely the publication of a particular photograph or visual work. An individual’s likeness is not a work of authorship even if it is embodied in a copyrightable photograph or tattoo design.
Summary prepared by Tal Dickstein and Ava Badiee