Cardi B's sexually-explicit album art lawsuit is headed for trial.  As my colleague Brian Murphy excellently reported here and here, Belcalis Almanzar, a.k.a. Cardi B, has been embroiled in a lawsuit against Kevin Brophy in the Central District of California.  Brophy sued Cardi B (among others) alleging that the cover art for her 2016 album Gangsta Bitch Music, Vol. 1 ("GBMV1") includes a photograph of his naked, tattooed back in a sexual position that “shocked, outraged, humiliated, and appalled” him.  Seeking over $ 5 million in damages, Brophy sued for (1) misappropriation of likeness or identity, (2) violation of California Civil Code § 3344, and (3) invasion of privacy—false light.  Relevant images (GBMV1 cover art on the left and the Brophy photograph on the right):

Recently, Cardi B moved for summary judgment arguing that Brophy's claims are barred by the defense of "transformative fair use" under the First Amendment of the U.S. Constitution and Article I, Section 2 of the California Constitution.  To determine whether her use of the Brophy photograph was transformative, she argued that the Court should apply the test traditionally applied in copyright infringement cases and codified in 17 U.S.C. § 107:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Brophy opposed arguing that, while Cardi B's inquiry is correct:  whether the GBMV1 cover art use was "transformative," the test to be applied was articulated by the California Supreme Court in Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), and not the one codified in 17 U.S.C. § 107.  Under Comedy III, a "transformative use defense" necessitates analyzing at least five factors before a work is sufficiently transformative to obtain First Amendment protection:

First, if “the celebrity likeness is one of the ‘raw materials' from which an original work is synthesized,” it is more likely to be transformative than if “the depiction or imitation of the celebrity is the very sum and substance of the work in question.”  Second, the work is protected if it is “primarily the defendant's own expression”—as long as that expression is “something other than the likeness of the celebrity.”  This factor requires an examination of whether a likely purchaser's primary motivation is to buy a reproduction of the celebrity, or to buy the expressive work of that artist.  Third, to avoid making judgments concerning “the quality of the artistic contribution,” a court should conduct an inquiry “more quantitative than qualitative” and ask “whether the literal and imitative or the creative elements predominate in the work.”  Fourth, the California Supreme Court indicated that “a subsidiary inquiry” would be useful in close cases:  whether “the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted.”  Fifth, the court indicated that “when an artist's skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame,” the work is not transformative.  In other words, under Comedy III, the "transformative use" defense is “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere . . . likeness or imitation.”  

Brophy also argued that irrespective of which test is applied, the bottom line is that Cardi B's use was not transformative enough that no jury could reasonably conclude that the use is nothing but a fair use—a standard that she had to meet for the Court to grant her motion.

On December 4, 2020, the Court agreed with Brophy and issued an order denying Cardi B's motion.  The Court cut to the chase and analyzed simply one question:  whether Brophy's bottom line was accurate.  Seemingly agreeing with Brophy that the Comedy III test applies, the Court concluded in the affirmative.  It reasoned that "[t]o constitute a transformative fair use, the revised image must have significant transformative or creative elements to make it something more than mere likeness or imitation."

Cardi B claimed that the transformation the GBMV1 cover art's creator performed to the Brophy photograph is good enough.  She argued that in the GBMV1 cover art:  Brophy's “neck tattoo is removed,” “the arm is repositioned,” “the image is tilted to match the forward-leaning posture of the [art's] male model’s body,” one “portion of [Brophy's] left triceps tattoo, vertical in the picture of [Brophy] standing, is horizontal on the outstretched arm of the actual male model kneeling and leaning forward," and other portions of Brophy's triceps tattoo are eliminated.

However, the Court was not convinced.  Based on the testimony from the GBMV1 cover art creator, the Court noted that while some changes were made to the Brophy photograph:  (1) the Brophy photograph, before editing, was simply copied in its entirety; and (2) even after editing,  "defining elements of Brophy's tattoos, including the tiger and snake, remained virtually unchanged."  Accordingly, reasoning that "[a] reasonable jury in this case could conclude that there are insufficient transformative or creative elements on the GBMV1 cover to constitute a transformative use of [Brophy's] tattoo," the Court denied Cardi B's motion, and the case is now headed for trial (unless it settles; either way, stay tuned!).

P.S.:  Happy Holidays!

P.P.S:  * Kudos to Brian for this catchy title that has now evolved into a franchise.