Une défense qui fait couler de l'encre : l'affaire Cardi B et les risques liés à l'utilisation non autorisée d'un tatouage (en anglais)

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 Ltd^[1] in 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 purpose.

To be considered "identifiable," the subject's image or personality must be captured clearly so that the subject is recognizable. This was a large point of contention in the case at hand. Brophy argued that the tattoo was so "unique" and "distinctive" it made him recognizable whenever he was shirtless. On the other hand, Cardi B alleged that she had altered the tattoo to such a degree that it was no longer identifying of Brophy.

So while it seems like Brophy would not have been able to meet the first prong of the test in a Canadian court, it is easy to imagine a scenario with a different result. For example, suppose an advertiser were to draw the same recognizable tattoo that appears on a celebrity onto an actor for the purpose of their commercial. In that case, it may give the impression that the celebrity was endorsing the product and so the celebrity might have a successful claim for misappropriation of personality.

Even without an implied endorsement or celebrity status, an unauthorized use of a tattoo may amount to a violation of privacy rights. While the common law tort of misappropriation of personality requires there to be an exploitation of the personality for a commercial purpose (which is often in the form of an implied endorsement), the privacy tort of "intrusion upon seclusion" provides recourse against a defendant who intentionally (or recklessly) invaded an individual's private affairs in a manner that a reasonable person would find offensive or to cause distress humiliation or anguish.^[2]

The tort of intrusion upon seclusion was originally established in the context of an unauthorized examination of the plaintiff's bank account.  However, a Small Claims Court judge in Ontario has since stated that the elements of the tort would also "apply to capturing the persona or likeness of an individual and using it for commercial purposes without consent."^[3]

Although it is not difficult to imagine a situation where a tattooed individual successfully makes this claim, the jury that heard the case between Cardi B and Brophy was not convinced. This could have been influenced partly by the fact that Brophy did not submit any evidence that anybody mistakenly believed that he was actually on the cover of the album. The only person who noticed that the tattoo resembled Brophy's was his tattoo artist, the man who owns the copyright in the artwork.

Next on the horizon

While Brophy's tattoo artist did not pursue a claim of copyright infringement against Cardi B, there are other high profile tattoo cases currently needling their way through the court systems where the tattoo artist is involved. In particular, James Hayden - the tattoo artist who tattooed basketball superstars like LeBron James and Tristan Thompson - is currently suing the NBA 2K game series for depicting these tattoos without his permission. On a motion for summary judgment, the US District Court for the Northern District of Ohio Eastern Division recently held that the tattoos were original and entitled to protection. However, the court also held that a jury should decide on the issues of de minimis and fair use. As such, it looks like this case will be heading to trial. We know we'll be stuck to the trial like ink on skin.