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<\/a><\/p>\nCardi B argued that the cover image is transformative fair use of Brophy\u2019s likeness.\u00a0 This claim was rejected by U.S. District Court Judge Cormac Carney.\u00a0 Fair use is transformative when the revised image has a significant transformative or creative element to make it something more than mere likeness or imitation.\u00a0There were insufficient creative elements on Cardi B\u2019s cover for it to be considered transformative use of the tattoo.\u00a0The man\u2019s neck tattoo was removed, the arm was repositioned, and the image was tilted, but these factors are not enough to satisfy a significant creative transformative element.<\/p>\n
Brophy appears to be having trouble on the damages end of this case.\u00a0 An expert, Douglas Bania, calculated that the amount of revenue attributable to the use of the tattoo was $1,070,854, based on searches where the cover art appeared.\u00a0 Bania also added $554,935 for the use of Brophy\u2019s likeness.\u00a0 Judge Carney is not satisfied with this analysis, as there is not any survey, poll, focus group, or other study where it is stated that the a music listener\u2019s decision to buy an album is solely or critically influenced by the album\u2019s cover art.\u00a0 There is no basis that Cardi B would not have made the money on the album without the use of Brophy\u2019s tattoo.<\/p>\n
Punitive damages are still a possibility for Brophy, as well as any damages from his false light claim.<\/p>\n