Cardi B Inks A Defence: The Risks Of Using A Tattoo Without Consent

• Published date: 22 November 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Privacy, Copyright, Privacy Protection, Trademark, Media & Entertainment Law
• Law Firm: Gowling WLG
• Author: Ms Susan Abramovitch and Madison MacColl

On Oct. 21, 2022, Cardi B was cleared of any wrongdoing for using a back tattoo on the cover of an album she released in 2016. The album depicts Cardi B and a man in a provocative sexual position together. While the man is faceless, there is an elaborate tattoo on his back on full display for the world to see. The problem is that this tattoo was taken from a picture of a model and marketing manager, Kevin Michael Brophy, Jr., and edited onto the model who appears on the album cover. After learning about the album cover, Brophy promptly sued Cardi B for misappropriating "the unique likeness" of his body and image without his knowledge and using it in a "misleading, offensive, humiliating and provocatively sexual way to launch her career in music and entertainment."

At trial, Cardi B argued that, by editing the design and superimposing it onto a man with a different skin colour, Brophy was not identified in the cover art. The image was taken from an online photo of Brophy. In the photo, Brophy is standing straight up, arms at his side, facing away from the camera, displaying his entire back. In contrast, Cardi B's album cover depicted a different man, kneeling in front of her, face invisible, arms outstretched, and only displayed the upper portion of his back with the tattoo.

As we have previously discussed in Who Owns the Ink? Reproduction of Tattoos in Film, Photographs and Video Games, when it comes to tattoos, there can be a number of different players with competing interests. This case serves as a very important reminder that along with copyright and trademark claims, an unauthorized use of a tattoo could be a violation of an individual's personality or privacy rights.

Personality, privacy and tattoos

Personality rights describe an individual's exclusive right to exploit identifying aspects of their personality, whether actual or bearing a resemblance to them. Recognized identifying features include a name, image, voice, signature pose, and, arguably a distinctive tattoo. In Canada, these rights are protected through the tort of misappropriation of personality and relevant provincial privacy legislation.

The tort of misappropriation of personality was first established and recognized in Canada by the Ontario court in Krouse v Chrysler Canada Ltd¹in 1973. According to Krouse, a successful misappropriation of personality claim requires that the subject be clearly identifiable and that the exploitation of the subject's personality be for a commercial...