cardi b – Techdirt (original) (raw)

from the red-ink dept

It’s crazy just how many posts we’ve done here on the subject of tattoos. But if you go and review the posts we have done on this topic, you will notice that the majority of them involve tattoo artists as the ones asserting intellectual property rights, not those who got the tattoo on their person. The subject of this post is about the latter.

Most of you will be at least tangentially familiar with Cardi B, the rap star. In 2016, Cardi B released a mixtape entitled Gangsta Bitch Music Vol. 1. The cover for the mixtape was designed to invoke a challenge to traditional gender roles in rap and flip them such that Cardi B is decidedly not subserviant to men.

It turns out the inspiration for the tattoo on the man who is, um, subserving Cardi B was a tattoo that appears on the back of a man named Kevin Brophy. The depiction of the tattoo on the cover isn’t exactly the same as that of Brophy’s, but they’re damned close.

And as a result, Brophy sued Cardi B for misappropriation.

A married father of two and lifelong surfer, Brophy lives in Costa Mesa and works as a marketing manager for a surfing lifestyle company. He told the jury of four men and four women on Tuesday that he worries his young son and daughter will eventually see the cover or that their friends will show it to them.

“This was a long journey to get this tattoo. It took a lot of commitment,” Brophy said. “To see it in this light was a complete slap in the face and a complete disrespect to me and my family. It looks like I’m giving oral sex to someone who’s not my wife, someone who’s not my partner. An image that I never, ever signed off on — ever,” Brophy testified.

On the one hand, I can understand the discomfort here. Even a hint of being depicted performing a sex act on a music artist on an album cover probably wasn’t Brophy’s best day ever. But here’s the problem: Brophy lost his case. Why? Because the cover didn’t appropriate Brophy’s image. It took a small part of his image, the tattoo, changed that to some degree, and then Photoshopped it onto the back of a man that is not recognizable as Brophy. For instance, Brophy is bald and the man on the cover has hair. Brophy is white, while the man depicted on the cover is black.

And, all of this amounts to transformative speech protected by the First Amendment.

Cardi’s lawyer Peter Anderson gave the closing for her side, arguing mixtape cover uses parts of Brophy’s tattoo in a way that transforms them into another piece of art and is protected by the First Amendment. He also questioned how Brophy has been harmed, saying his lawyers have been speaking in hyperbole by saying Cardi has ruined his life for five years.

As a result, Brophy has subsequently agreed to pay Cardi B’s attorney’s fees.

“The parties now have reached an agreement avoiding the necessity of Defendants’ motion for attorney’s fees and application to tax costs and Plaintiff’s New Trial Motion,” says the stipulation, filed Monday. Under that agreement, Brophy will pay $350,000 in attorney’s fees and withdraw his motion for a new trial.

Which appears to have followed an exchange during the verdict of the original trial, in which Brophy made a point of telling the artist he respected her work and mentioned they even know some people running in the same circles. She is reported to have responded kindly.

Which is probably a bit easier after you get win after win in court.

Filed Under: cardi b, copyright, kevin brophy, misappropriation, tattoo

from the no-more-inspiration dept

We’ve talked quite a bit lately about how the Blurred Lines decision, saying that having a similar “feel” in a song can be copyright infringement even if it’s not a direct copy, has truly messed up the recording industry. Artists are afraid to even mention inspirations for fear of it leading to a lawsuit. New lawsuits are freaking out musicians and even have the RIAA complaining that maybe copyright protection has gone too far.

It appears we’ve got another such lawsuit, this time against Lil Nas X, who had the undisputed “song of the summer” with “Old Town Road.” Lil Nas X released his 7 EP earlier this summer, which included a couple versions of “Old Town Road,” but also a collaboration with Cardi B called “Rodeo.”

And now they (and everyone else) have been sued over the song claiming that it infringes on a beat called “gwenXdonelee4-142” (catchy name that) that was incorporated into a song you probably haven’t heard of: “Broad Day” by PuretoReefa and Sakrite Duexe.

Now, what’s important here is that complaint does not claim that Rodeo sampled Broad Day or even that it directly copied the original beat. It literally notes that they just have a “substantially similar” sound.

The similarities between the works at issue include but are not limited to the following: the two works at issue employ a number of substantially similar elements and material which constitute a constellation of elements creating a substantially similar overall sound and feel, as set forth in the below, non-inclusive musical analysis…

It then notes a variety of similarities, including that the chord progression is the same (which, uh, so what?) and that they’re both at 142 beats per minute. And then there are things like:

Plaintiffs? Work utilizes guitar and wind instruments to evoke a certain aesthetic that is set against hip-hop elements derived from digital drum and bass elements….

Rodeo also utilizes guitar and wind instruments to evoke a certain aesthetic that is set against hip-hop elements derived from digital drum and bass elements.

And:

At regular intervals in Plaintiffs? Work, the rhythmic guitar part outlining chords is replaced with a single note line playing an ascending then descending scale moving with the chord changes….

At regular intervals, Rodeo?s rhythmic guitar part is replaced with a single note line playing ascending and descending scales following the chord progression.

Yes, the songs sound similar. Lots of songs sound similar. That doesn’t mean it’s infringement, nor should it. But, in a post Blurred Lines reality, that’s what we have. Two songs having some similarities are suddenly deemed infringing and the lawsuits start flying. It wouldn’t surprise me to find that this case is just settled with the beat creators getting a song-writing credit, because that’s often cheaper and faster than going through a whole court case, but the whole thing is pretty messed up and has nothing to do with the true purpose of copyright law.

Again, though, the recording industry only has itself to blame for this situation. It spent decades pushing a maximalist view of copyright, that everything must be owned and that everything must be licensed. Now it’s discovering what that means in the real world.

Filed Under: blurred lines, cardi b, copyright, lil nas x, music, rodeo, style