Cardi B is speeding toward an Aug. 3 trial date for the $5 million lawsuit that claims she misappropriated a California man’s tattooed likeness and portrayed him in a “sexual” context on the cover of her 2016 mixtape Gangsta Bitch Music Vol. 1.
At a lengthy hearing Monday, a federal judge in Santa Ana, California, set the trial’s ground rules, confirmed Cardi is expected to testify in person, and hammered out a statement of the case that he plans to read to prospective jurors before a panel of eight is selected to hear the expected four-day trial. (Federal law allows civil trials to proceed with as few as six jurors, but such slimmed-down panels must reach unanimous verdicts to avoid a mistrial.)
“It’s showtime,” U.S. District Judge Cormac J. Carney said after it became clear that earlier settlement discussions in the long-running dispute had lost their momentum.
“I don’t think this case is a complex case, but I think it’s a very interesting case, and it’s one I think the jurors would enjoy,” Judge Carney said as he painstakingly edited the statement of the case set to be delivered to the jury pool at the outset of the selection process. “I’d like them to know this is the case before they think about whether they want to get off the case or not.”
Plaintiff Kevin Michael Brophy Jr. claims in his 2017 lawsuit that he has suffered “distress and humiliation” because the cover art in question shows his distinctive back tattoos on a faceless man photographed with his head between Cardi’s legs as she drinks a beer inside a limousine.
For her part, the superstar rapper born Belcalis Almánzar contends Brophy’s tattoo art was superimposed without her knowledge on the back of a male model who posed with her for the photo during a shoot in Toronto. She argues it’s clear Brophy, who is caucasian, is not the same person as the Black model in the photo — and, either way, the tattoo design on her cover art “is demonstrably different” from the image of Brophy that he says was used to add his likeness through “photoshopping.”
“The neck tattoo is removed; the arm is repositioned; the lighting and shadowing is manipulated to fit the interior of the limousine; the image is tilted to match the forward-leaning posture of the model’s body; the image is tinted, shaded, and re-colored to fit the overall scheme of the underlying photo used in the (cover image); and the periphery fades to black,” her filings in the case state.
On Monday, lawyers for Brophy got Judge Carney to tweak his statement of the case so it’s clear at the outset that their client considers the photo an explicit depiction of oral sex. “Plaintiff alleges that he did not and would not consent to defendants’ use of his likeness, and that he is being portrayed in an offensive manner depicting sexual activity with Cardi B,” the edited line of Judge Carney’s statement now reads.
Once that change was made, Cardi’s lawyer Alan Dowling persuaded the judge to edit a subsequent line. The new line says that according to Cardi, Brophy “is not the man depicted in the image, that the image does not portray actual sexual activity (and) that defendants’ use of his tattoo design did not show plaintiff in a false light or would be highly offensive to a reasonable person in plaintiff’s position.”
In his filings, Brophy describes himself as “family man with minor children” who resides near Los Angeles and works “for a surfing and lifestyle company.” He says that after he learned of the “egregious” misappropriation of his likeness, he was faced with “uncomfortable comments, questions, and ridicule from community members and family.”
“His family dynamic has been adversely affected, and his work and professional life have been unalterably damaged by his having to explain this unconsented-to, offensive, and malicious use of his image,” his lawsuit states.
Cardi recently testified during her defamation trial against vlogger Latasha Kebe in federal court in Georgia that ended with a victory for the “WAP” rapper.