In proper of publicity lawsuit in opposition to rapper Cardi B for utilizing plaintiff’s again tattoo in sexually suggestive method on cowl of her debut album, district courtroom denies defendants’ movement for abstract judgment, holding that transformative honest use is query for jury, however excludes testimony of plaintiff’s damages knowledgeable as a result of it was not product of dependable ideas and strategies.
Rapper and tv character Belcalis Almanzar (popularly generally known as Cardi B) launched her debut mixtape, titled Gangsta Bitch Music Vol. 1 (GBMV1), in 2016. Cowl artwork for the album depicted Cardi B holding a person’s head facedown between her legs together with his tattooed again clearly seen. The distinctive again tattoo on the middle of the picture belongs to Kevin Michael Brophy Jr., who introduced swimsuit in opposition to Cardi B and others for false gentle invasion of privateness, violation of California’s statutory proper of publicity, Civil Code § 3344, and misappropriating his likeness in a “deceptive, offensive, humiliating and provocatively sexual approach” with the intention to launch Cardi B’s music profession. There was no dispute that plaintiff’s tattoo was used to make the GBMV1 cowl. Moderately, the graphic designer who created the quilt artwork discovered the picture of plaintiff’s tattoo on the web and manipulated the design onto the again of the male mannequin featured on the quilt.
Defendants moved for abstract judgment, arguing that the album cowl constitutes transformative honest use, that plaintiff’s false gentle declare is barred by the statute of limitations and that plaintiff’s proposed knowledgeable testimony on damages was not the product of dependable ideas and strategies.
As to the transformative honest use protection, defendants argued that their graphic designer manipulated the tattoo picture such that it constituted transformative honest use. The courtroom was not satisfied, nonetheless, discovering {that a} cheap jury might conclude that the modifications made to the photograph lacked enough transformative components or inventive contributions essential to assist a good use protection—significantly for the reason that most defining components of the tattoo (specifically, the tiger and snake designs) remained nearly unchanged on the album cowl.
Defendants additionally argued that plaintiff’s damages knowledgeable’s testimony was unreliable and have to be excluded. The damages knowledgeable concluded that all the royalties from Cardi B’s GBMV1 album, which have been over $1 million, have been attributable to plaintiff’s likeness. The knowledgeable merely added up the income from streaming providers that displayed the quilt artwork at any time when somebody listened to the mixtape. Plaintiff’s damages evaluation additionally included roughly $600,000 of income from Cardi B’s subsequent album, Gangsta Bitch Music Quantity 2, on the speculation that that album was performed mechanically after somebody completed listening to GBMV1. The courtroom agreed with defendants that plaintiff’s knowledgeable’s damages calculations have been unfounded. Whereas consultants are “permitted extensive latitude to supply opinions, together with these that aren’t based mostly on firsthand data or commentary,” they’re held to the minimal customary that their testimony have to be “based mostly on enough details or information” and be “the product of dependable ideas and strategies.” The courtroom discovered no cheap foundation to just accept the knowledgeable witness’s assertion that plaintiff’s likeness on the quilt artwork contributed to shoppers’ choices to stream or buy GBMV1, thereby producing royalties to defendants. As well as, the damages knowledgeable couldn’t level to any information or proof to point out that defendants would have earned much less income had plaintiff’s likeness not been used on the quilt. For the reason that jury could award solely damages truly attributable to defendant’s legal responsibility, the courtroom excluded plaintiff’s proposed knowledgeable testimony.
Lastly, the courtroom denied defendants’ request to amend their solutions to claim a statute of limitations protection to plaintiff’s false gentle declare. Whereas the courtroom acknowledged that depart to amend pleadings must be given freely, it famous that on this circumstance it will be futile and would end in prejudice to plaintiff. Defendants didn’t elevate this protection till after the events accomplished written discovery, thereby denying plaintiff a chance to conduct discovery focused at this particular situation. Moreover, defendants republished GBMV1’s cowl artwork on bodily vinyl information in 2019 and approved and profited from its use on different streaming platforms inside the statute of limitations interval, rendering the constraints protection futile
