Law&Crime Sidebar - Trial Begins in $5M Lawsuit Over 'Raunchy' Cardi B Album Cover

Episode Date: October 20, 2022

Rapper Cardi B. is being sued by a man in California who claims she used his tattoo as cover art in a sexually explicit album cover, causing him emotional distress. Entertainment attorney Jonathan Handel discusses the suit and the man's likelihood of winning the case.GUEST:Guest: Jonathan HandelLAW&CRIME SIDEBAR PRODUCTION:YouTube Management - Bobby SzokePodcasting - Sam GoldbergVideo Editing - Michael Deininger & Logan HarrisGuest Booking - Alyssa FisherSocial Media Management - Kiera BronsonSUBSCRIBE TO OUR OTHER PODCASTS:Court JunkieObjectionsThey Walk Among AmericaCoptales and CocktailsThe Disturbing TruthSpeaking FreelyLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkTikTok: https://www.tiktok.com/@lawandcrimeSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge all episodes of this Law and Crimes series ad-free right now. Join Wondry Plus in the Wondery app Apple Podcasts or Spotify. Agent Nate Russo returns in Oracle 3, Murder at the Grandview, the latest installment of the gripping Audible Original series. When a reunion at an abandoned island hotel turns deadly, Russo must untangle accident from murder. But beware, something sinister lurks in the grand. View Shadows. Joshua Jackson delivers a bone-chilling performance in this supernatural thriller that

will keep you on the edge of your seat. Don't let your fears take hold of you as you dive into this addictive series. Love thrillers with a paranormal twist? The entire Oracle trilogy is available on Audible. Listen now on Audible. Welcome back to Sidebar here on Law and Crime. I'm Ann Jeanette Levy. Rapper Cardi B is in federal court in Los Angeles this week, defending herself against a lawsuit. A man named Michael Brophy as suing Cardi B because he says that a graphic designer took his back tattoo off of his Instagram page and then put it on Cardi B's mixtape album cover and used it in a sexually explicit manner. You can see it on the screen right now. It looks like there's a man with this tattoo performing oral sex on Cardi B. So Michael Brofie has sued. He says, I'm a married man.

This portrayed me in a bad light. He's suing over invasion of privacy. He says people know that this is his tattoo. He has a lot of Instagram followers. So it's a pretty interesting case. And joining us to discuss it is entertainment attorney Jonathan Handel. Jonathan, welcome back to Sidebar. Thanks for coming on. Thanks. It's a pleasure. And it is a very interesting case. It is interesting. And Cardi B. obviously is in court. She hasn't settled this lawsuit. So this guy, Michael Burr, Rofi says, look, people on Instagram know this is me. They've said things to me about it. He basically says this has caused him a lot of emotional distress. So what do you make of it? Well, it's a complicated case. Let's first parse out for a minute what it isn't. And we may

talk about that a little bit more later. This is not a copyright infringement case. The person who would own the copyright would be the tattoo artist. And the tattoo artist is not suing. Now, there are other cases that involve, you know, completely different people where tattoo artists have sued for copyright infringement. But here, what Brofey is saying was, I had a tattoo on my back that was so distinctive that people recognized that that's my back. The graphic designer, as you said, allegedly lifted that, and maybe there's no dispute as to this fact. The graphic designer lifted that tattoo, placed it on the back of a male model who was photographed to be appearing to perform oral sex on Cardi B. Cardi B emphasizes that part of the point of this photograph was to show she was a strong woman in control. And what Brofey is saying was, look, by doing that, you made it seem as though I was there performing oral sex on her.

that's an invasion of privacy that puts me in a false light. I'm married when I see people wearing a t-shirt with that image. It's all I can do not to go up

and rip the t-shirt off their backs. It just causes me emotional damage. But Cardi B counters that, for example, the man's wife when she first saw the picture

was like, oh, well, that's not my husband. You know, I recognize the tattoo. too, what's going on here? But that's not my husband. The model has hair, which I guess is implying that Brofee may be evolving or buzzcott or something of that sort. There are enough distinctions that while on the one hand, some of the guy's friends, one of the guy's friends sort of makes fun of him a little bit and thinks it's a goof to reference this, but that on the

other hand, people closest to him did not, you know, don't know that it's not profy. In addition, Cardi B, the, when we should say the most recent round of testimony, Cardaby is very feisty on the stand. She really is, you know, answering at length and the judge had to at one point send the jury out and say, look, you sort of have to, you know, answer yes or no questions with yes or no. And then, you know, if you need explanation, had some explanation, but the judge has given her some latitude, apparently, or she's taken some anyways. And she said, look, how is this guy damaged? He didn't lose his job. He didn't lose his job. He didn't get divorced. There's nothing bad that's happened to him. So she's, you know,

in her testimony, she's, you know, and it's not him. So she's very, her testimony is almost legalistic in some way. She's very pointedly undermining both the claim itself, saying that people know that this isn't him, and also in her testimony, she's undermining any damages claim that even if he were to prevail, you know, what are his damages? And again, this isn't a copyright lawsuit. This is an invasion of privacy lawsuit. And so, you know, the issues here are difficult. It's, you know, it's as though, I mean, from the back, few people are really, you know, truly distinctive, unless they have a distinctive tattoo on them. backs look. Some people have muscles. Some people don't. Some people, whatever, they're different shapes. But, you know, the likelihood that someone would be mistaken for someone else

absent a tattoo on their, you know, on their back, as opposed to a photograph of a face is, you know, obviously very low. And so this is a, you know, a very distinctive and unusual lawsuit. But, you know, given how popular skin art is, you know, in the last 20, 30 years, it's a it's ultimately not surprising that we've come to this place. Yeah, most definitely. And there are all kinds of lawsuits, you know, that've come up with these artists and when they use possibly lyrics or now in this case, it's possibly part of a tattoo. And, you know, Cardi B's lawyers are basically saying, look, this guy, Michael Brophy doesn't look anything like the guy on the album cover. And they contend that it was just a small portion of this tattoo that was used.

So I don't know. You know, I think it's kind of wild that it does look so similar. But at this, and they are saying this tattoo artist is going to testify, the guy who put this on him, I guess he spent 50 to 60 hours working on this tattoo over a long period of time. Right. I mean, it covers his entire back. And it's a serpent and a tiger. They're saying, and I go back to this, Cardi B's lawyer says basically that that's a black man with. hair and this is a white man with shaven head that's a black man who has no neck tattoos no

head tattoos uh but mr brophy has head and neck tattoos so but if you saw this on instagram because the guy has so many followers and you were like i mean you would have to know him and know his instagram page and but is this a subjective thing as well though jonathan because he's saying it caused him distress so um if it did cause him distress and he wanted it taken down Why not, if you're Cardi B, just take it down or change the album cover moving forward? Well, you know, and first of all, on the subject of the tattoo, we could point out, as viewers saw earlier, it's what's depicted on the album cover is the guy, the model's upper back. So this was, as we gather, a full back tattoo and, you know, something like a third of the tattoo is what was,

you know, actually, uh, actually used. Um, but, you know, the album is out there. Um, you know, and yes, on, you know, electronic services, you could prospectively change the, uh, the, you know, the cover art. You obviously can't change the, you know, physical CD to the extent that that's, you know, relevant to the, I'm not sure how many people buy Cardi B CDs. Uh, right. That's kind of what I'm thinking. Who buys a CD anymore? Even I, you know, get on my phone and do the, you know, Apple Music or iTunes or whatever. Right. You know, the downside of doing that is that it would appear as an admission of liability of, you know, quote-unquote guilt. And so it might reduce, it might reduce damages if you were found liable that you've, you know, cured the issue going

forward, but it also increases the likelihood of a, you know, jury saying, well, she wouldn't have changed it, assuming it came in as evidence, which, you know, they probably want to try to keep exclude. But if it did come in, the jury would say, well, she changed it. She must have felt, you know, guilty. She must have felt that she did something wrongful in the first instance. But on the flip side, they could also think, oh, she tried to rectify this. She, said oh i didn't know or what have you and and changed it or told somebody to change it and you know she's like hey i'm really sorry i didn't know and uh we just thought it was a good album cover and then the jury might say well you know she fixed it it cut it would cut both ways and you know

in a uh a civil jury does not have to be unanimous in their verdict unlike a criminal jury and so it'd be hard to tell but you know at the end of the day it's pretty clear from her testimony, that she feels that she did nothing wrongful, that this does not, I mean, yes, the fact that he realizes that it's his tattoo, but not even his body. So, you know, and that he doesn't own the tattoo. He's the, he's the medium, the medium, the surface of the tattoo. Not everything that makes someone feel bad is, you know, is wrongful. I mean, is actionable, right. It's actually right. That's exactly right. I mean, you know, some people are, you know, someone's kid comes out as gay or transgender. Some people are, you know, feel emotionally hurt by that. That doesn't mean they can sue their

kid for, you know, for that. I mean, there's all sorts of things that, you know, the world is full of, you know, people are independent. People get to do what they want. And, you know, there's an old saying that, you know, my rights extend only so far as they don't intrude on your rights, but, you know, defining what that line actually means. It's a nice little phrase, but what it actually means is, you know, the devil's in the details. And we shall see what this jury does. Jonathan Handel, entertainment attorney, thanks for coming on. We appreciate it. Thank you. And that's it for this edition of Law and Crime Sidebar podcast. It is produced by Logan Harris, Sam Goldberg and Michael Dininger.

Bobby Zoki is our YouTube manager. Alyssa Fisher handles our bookings and Kira Bronson does our social media. You can download and listen to Sidebar anywhere you get your podcast. That's Apple, Spotify, Google, and a lot of other places. Also, you can watch it on Law and Crimes YouTube channel. I'm Ann Janette Levy, and we will see you next time.

You can binge all episodes of this Law and Crime series ad-free right now on Wondery Plus. Wondery Plus in the Wondery app, Apple Podcasts, or Spotify.