A federal judge is refusing to overturn Cardi B’s courtroom victory in lawsuit over a man who was unwittingly photoshopped into a “raunchy” album cover, ruling that he would not “second-guess” the verdict handed down by a jury.
Kevin Brophy had asked the judge to toss out an October jury verdict clearing Cardi of wrongdoing over the bawdy cover of her 2016 mixtape Gangsta Bitch Music Vol. 1, which Brophy claimed had “humiliated” him by making it appear he was performing oral sex on the superstar rapper.
But such rulings are reserved for rare situations where a jury clearly got something wrong — like a verdict that flies in the face of the evidence that was actually presented in court. And in a ruling on Wednesday, Judge Cormac J. Carney said there were plenty of reasons why the jury had sided with Cardi.
“In short, reasons abound to sustain the jury’s verdict,” the judge wrote. “It is not for this Court to second-guess the verdict now.” Notably, the judge also ordered Brophy to repay the legal bills that Cardi incurred defending the lawsuit, which can often amount to hundreds of thousands of dollars.
Among other reasons for siding with Cardi, Judge Carney said jurors could have been swayed by evidence and testimony that Brophy had not actually suffered any harm – none at all – as a result of Cardi’s supposedly humiliating album cover.
“Brophy testified that neither he nor any member of his family sought treatment from a psychiatrist or psychologist or marital or family counseling for the alleged humiliation, embarrassment, and mental distress,” the judge wrote, adding that Brophy had also seen no adverse impact on his professional career. “He is happily married to his wife, Lindsay, who also testified to the strength of their relationship, and their eldest child, who saw the mixtape cover once, never mentioned it to Brophy again.”
Released in 2016, the cover image of Gangsta Bitch featured the then-rising star is seen taking a swig of a large beer, staring directly into the camera with her legs spread wide and holding a man’s head while he appears to perform oral sex on her.
The actual man in the image was a model who had consented to the shoot, but a giant tattoo on the man’s back belonged to Brophy. Unbeknownst to Cardi, a freelance graphic designer had typed “back tattoos” into Google Image, found one that fit (Brophy’s), and Photoshopped it onto the model’s body.
Brophy sued in 2017 for millions in damages, claiming he was “devastated, humiliated and embarrassed” by the cover. He claimed Cardi and others violated his so-called right of publicity by using his likeness without his consent, and also violated his right to privacy by casting him in a “false light” that was “highly offensive.”
Cardi’s lawyers called the allegations “sheer fantasy” and “vastly overblown,” arguing that nobody would have recognized a relatively unknown man based merely on his back. And after a four-day trial in which the star herself demanded “receipts” to support the allegations, a jury agreed – clearing Cardi of all Brophy’s claims.
In Wednesday’s decision upholding that verdict, Judge Carney said jurors had an “ample basis” to reach that decision. Among other things, he cited testimony about how the model in the image appeared to be a Black man, while Brophy himself is white.
“The jury could have reasonably concluded that the back tattoo on the model on the mixtape cover at issue in this suit was not sufficiently identifiable with Brophy,” the judge wrote. “Because the model’s face is not visible, identification based on facial appearance is impossible.”
The judge said jurors also had good reason to believe the cover represented a “transformative fair use” of the image – meaning it was legal for Cardi to use it to create her own new image on the cover.
“Brophy’s tattoo played a minor role in what was a larger visual commentary on sexual politics,” the judge wrote. “Brophy’s tattoo was but one tattoo on the back of the model, who was himself but one part of a suggestive portrayal of a man with his head between Cardi B’s legs.”
“The purpose, Cardi B testified, was to show her in control, reversing traditional gender roles,” the judge concluded.
Wednesday’s is likely not the end of the road for Brophy’s lawsuit, since he can still take the case to a federal appeals court to seek a reversal of Judge Carney’s decision. Brophy’s attorney declined to comment on the ruling when reached by Billboard.
