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Cardi B back tattoo trial gets underway in Orange County

Kevin Michael Brophy says the use of his back tattoo on Cardi B's album cover amounts to a misappropriation of his likeness.

SANTA ANA, Calif. (CN) — It is a tale of fame, oral sex and a back tattoo. 

It is a fight over a tiger — a tiger fighting a snake, painstakingly depicted on the back of a man, Kevin Michael Brophy.

It is a jury trial in federal court in Orange County, which began on Tuesday, over who owns the rights to the tiger, the snake, the tattoo — over who can use it and for what end. 

Brophy had never heard of Cardi B, the Grammy-winning, multi-platinum selling rapper and songwriter, much less met her, in 2016. So it was something of a surprise when Brophy discovered that parts of his back tattoo appeared on the album cover of Cardi B’s debut mixtape, "Gangsta Bitch Music, Vol. 1." The album cover depicted a shirtless man, with a tattoo bearing a striking resemblance to that of Brophy's, appearing to perform cunnilingus on the rapper in the back of a limousine, as she sipped from a bottle of Corona and glared into the camera, her hand resting on the man's head. 

"I would never ever sign off on an image like this, being a father of two," Brophy testified on Tuesday. "No one ever asked for my consent. This was just an image that came into my life."

Brophy appeared in court, his head shaved, numerous tattoos visible on the back of his head, neck and sleeves, along with his wife of 11 years, with whom he has two children. When called as the first witness, Brophy testified that his wife peppered him with questions after seeing the album cover, and that his children, too, have questioned him about it.

It's been nearly five years since Brophy filed his lawsuit against Cardi B, whose real name is Belcalis Almanzar. In it, he alleged that the album cover amounted to a misappropriation of Brophy's likeness or identity, as well as an invasion of privacy.

"This lawsuit is simple," Brophy's lawyer, Barry Cappello, told the eight-member jury in his opening statement. "This wasn’t hers to take. This was his likeness. It’s the personal property, the personal identity, of a private citizen."

The tattoo, which covers Brophy's entire back, a "back piece" in tattoo parlance, took 50-60 hours to produce, over the course of a year and a half. It was designed by Brophy and Tim Hendricks, a tattoo artist of some renown.

"This was my Michelangelo," Brophy told the court. "People would come up to me: 'I can’t believe you own that piece, can I see it?' When you get one little tattoo, that’s one thing. This was a journey. It took a lot of pride. I want to protect this as much as I can."

Once he saw it on the raunchy album cover, he said, "It just felt devalued. It felt like my Michelangelo was stolen off the wall."

The original photoshoot was produced with Cardi B and an African American model. But his back tattoos, one of which depicted a cartoon animal with his finger in his mouth, were deemed inadequate — not the right tone for a "gangsta bitch." And so the graphic designer working on the cover replaced the tattoo with one of a tiger fighting off a serpent that he found on the internet — Brophy's.

Cardi B's lawyer, Peter Anderson, told the jury in his opening statement that the graphic designer had simply used a small section of Brophy's tattoo and transformed it. He called the tattoo "commonplace," one of many tiger tattoos that just happened to be plucked from the web.

"He did not use the easily-visible tattoos that appear in the photo of Mr. Brody," Anderson said. "He did not copy the tattoos on the back of Mr. Brody’s neck or head. He took a portion of the tiger. And he put it on a photograph of a toned, muscular, black gentleman — the model, who has a full head of black hair."

"While they claim that’s Mr. Brody’s likeness, that’s a black man with hair," Anderson added, referring to the album cover, "and this is a white man with a shaven head," he said, motioning to Brophy.

Anderson claimed that Brophy has been unable to identify anyone who had immediately recognized him from the album cover. It was the lawsuit itself, Anderson argued, which has been covered extensively by the media, which has forever linked Brophy with "Gangsta Bitch Music, Vol 1."

"That’s when [Brophy and his wife] started getting texts," Anderson said. "There were comments, jokes. But that’s a self-inflicted wound. He caused that by identifying himself, when no one else had identified him."

Brophy will return to the stand Wednesday morning, the second day of a trial that is expected to last four days.

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