Inside Santa Ana’s stately Ronald Reagan Federal Courthouse, U.S. District Court Judge Cormac J. Carney will soon decide whether to advance an unusual lawsuit involving rapper Cardi B and a controversial alleged depiction of cunnilingus on her Gangsta Bitch Music Vol. 1 album cover.
Costa Mesa’s Kevin Michael Brophy, Jr. filed a 2017 complaint alleging that the musician and two business entities tied to her “maliciously . . . misappropriated” his tattoo showing a tiger battling a snake.
“The cover shows Cardi B forcing plaintiff to perform cunnilingus on her, holding him face-down between her legs—his unique back tattoo and likeness featured conspicuously at the center of the image—while she drains a 24-ounce bottle of Corona Extra beer and stares lustfully into the camera,” Brophy’s lawsuit claims.
Brophy, who has worked in the Southern California surfing and entertainment industries, says he did not give Cardi B permission to use his well-known tattoo “in a misleading, offensive, humiliating and provocative sexual way to launch her career in music and entertainment.”
Seeking more than $5 million in damages, Brophy claims he suffered an invasion of privacy and “has had to face uncomfortable comments, questions and ridicule from community members and family related to this matter.”
Alan G. Dowling, the rapper’s Santa Monica-based attorney, asserted that Brophy didn’t design the tattoo and doesn’t own its copyright. Dowling also questioned how the plaintiff can complain that Cardi B, who’d never heard of him before the lawsuit, could have used him to advance her career.
“The suggestion that any of Cardi B’s success or income in any way arose from or is attributed to the use of the tattoo image in that early photo is simply ludicrous,” the attorney told Carney. “The photo of [Brophy] has been widely circulated on the internet for years, without any known copyright notice, restriction or limitation as to its use.”
Dowling added, “The plaintiff’s assertion that the album art photo depicts ‘him’ engaged in ‘sex’ with Cardi B, ‘cunnilinging’ her [plaintiff’s word], while she looks ‘lustfully’ at the camera—none of which are apparent from the picture itself—is simply a fanciful result of plaintiff’s ego and imagination running amok.”
He says the male in the photo is simply bowing to the musician.
Carney observed that Brophy, who has a large Instagram following, claims his job requires him to “wear board shorts but no shirt,” causing his back tattoo to become a popular symbol “recognized by his friends, his business and the surfing community.”
But the judge isn’t letting the case proceed at this point based entirely on a jurisdictional question. Brophy claims the matter belongs in California federal court because the New Jersey-based rapper enjoys a customer base here as well as performs at televised Los Angeles awards shows and concert forums like Coachella. Carney ruled in May that the plaintiff failed to adequately prove the point, but he’s giving the parties until August to make final arguments.
R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.