Album Covers and the Right of Publicity: The Cardi B v. Brophy Case and Comparative Italian Framework

The 2017 lawsuit filed by surfer Kevin Brophy against rapper Cardi B (real name Belcalis Almanzar) over her album cover for Gangsta Bitch Music Vol. 1 became one of the most-followed right-of-publicity cases of the past decade. The case turned on whether the album cover — which depicted a man’s back tattoo that Brophy alleged was his own, in a sexually suggestive context — constituted unauthorised commercial use of his identifiable image. The legal questions implicate the US doctrine of “right of publicity”, the Italian framework on personality rights and image rights, and now increasingly the questions raised by AI-generated album artwork.

This guide explains the case and applies the framework comparatively. For the broader image rights framework, see our right to image guide. For image releases and consent, see our image release guide. For the broader copyright framework, see our master pillar guide to copyright law in Italy and Europe.

The Brophy case: facts and procedural history

In 2016, Cardi B — then an emerging rap artist — released the mixtape Gangsta Bitch Music Vol. 1. The album cover featured Cardi B holding down a man’s head between her legs while drinking from a bottle of Corona beer. The man’s back was prominently visible and bore a distinctive tattoo depicting a snake fighting a tiger.

The cover image was a composite: the back tattoo had been digitally taken from a photograph of Kevin Brophy, a California-based surfer and marketing employee, and superimposed onto a different body. Brophy had not posed for the album cover, had not granted authorisation, and learned of the image only when his young son saw it online.

In October 2017, Brophy filed suit in federal court in California, alleging:

• Misappropriation of likeness under California common law;
• Violation of California’s statutory right of publicity (Civil Code § 3344);
• Invasion of privacy / false light: the sexually suggestive context implied conduct that did not occur and damaged his reputation.

Brophy sought $5 million in damages. The defendants — Cardi B, her agent KSR Group, and her business entity Washpoppin Inc. — denied liability.

The trial and appellate outcome

The case proceeded slowly through pre-trial procedures. In October 2022, after a five-year procedural path, the case went to a jury trial in the Central District of California. The trial featured Cardi B’s emotional testimony and detailed expert evidence on the tattoo identification.

The jury found in favour of Cardi B, returning a defence verdict. The jury concluded that the album cover was a transformative composite that did not constitute misappropriation of Brophy’s likeness — focusing on the fact that the cover used the tattoo image but not Brophy’s face or full identity, and that the composite was sufficiently transformed from the original photograph.

Brophy initially indicated intention to appeal, but the case effectively concluded with the defence verdict. The outcome was widely interpreted as setting a high bar for misappropriation of likeness claims based on body parts or distinctive features (rather than face or full identity).

US right of publicity framework

The US right of publicity protects individuals’ control over the commercial use of their identity. The framework varies by state — some states have statutory protection (California Civil Code § 3344, New York Civil Rights Law § 51), others rely on common law misappropriation tort, others provide no clear protection. Key elements typically include:

• The defendant used the plaintiff’s identity (name, voice, image, signature, or other identifying features);
• The use was for commercial purposes (advertising, merchandising, etc.);
• The use was without the plaintiff’s consent;
• The plaintiff suffered injury (typically commercial harm or dignitary harm).

For album covers and music industry uses, the right of publicity has been litigated in numerous cases beyond Brophy: rapper Future v. tattoo artist, model lawsuits against album cover artwork, and many other variations. The Brophy outcome suggests that partial identity uses (body parts, distinctive features) face higher bars than full identity uses (face, name).

Italian framework: Article 10 Civil Code + Articles 96-97 LDA

Italian law approaches the issue through a parallel but distinct framework:

• Article 10 of the Italian Civil Code: prohibits the publication or display of another person’s image where it harms their decorum or reputation, or where displayed without authorisation in cases prohibited by law;
• Article 96 of the Italian Copyright Act (LDA): a person’s portrait cannot be exhibited, reproduced, or commercialised without their consent;
• Article 97 LDA: limited exceptions for notorious persons in their public role, news of public interest, and similar contexts;
• GDPR (Regulation EU 2016/679): a person’s image is personal data, requiring valid legal basis for processing.

Crucially, Italian framework also covers the “evocative value” of a person’s image — where an unauthorised use evokes a specific identifiable person even without direct reproduction. Italian courts have applied this doctrine in cases involving Audrey Hepburn (2015), Lucio Dalla (1984), and Totò (1997). Under this framework, the Brophy case might be analysed differently: a distinctive tattoo associated with a specific identifiable person could engage Italian personality rights even where US doctrine on misappropriation requires more.

For Italian music industry productions distributing albums commercially, the cautious approach is therefore to obtain releases for all identifiable persons whose features (face, body, distinctive tattoos or markings) appear on artwork — see our image release guide.

Lessons for music industry

The Brophy case and broader album cover litigation suggests several lessons:

• Composite imagery requires clearance: when combining elements from multiple source photographs, each element must be properly cleared;
• Distinctive features are identifiable: even where face is not shown, distinctive features (tattoos, scars, body markings) can identify specific persons and trigger personality rights;
• Commercial use threshold is low: album covers are clearly commercial — no merit to claims that artwork is “artistic expression” exempt from publicity claims;
• Cross-border distribution multiplies exposure: album covers distributed globally engage multiple jurisdictions’ personality rights frameworks simultaneously;
• Italian distribution applies Italian framework: Italian distribution of US-produced album covers engages Italian image rights regardless of the underlying US contractual arrangement.

AI implications for album covers

The emergence of AI-generated artwork raises new questions:

• AI training on copyrighted photographs: AI models trained on photographs of identifiable persons can generate album cover imagery that resembles or evokes specific individuals;
• Synthetic likenesses: AI can generate album covers featuring synthetic faces that closely resemble identifiable persons without directly copying any specific photograph;
• EU AI Act transparency: under Regulation 2024/1689, commercial AI-generated content depicting identifiable persons requires transparency disclosure;
• Italian Law 132/2025: adds national-specific AI provisions including consent requirements for AI use of identifiable persons.

Modern album cover production, particularly involving AI-generated or AI-assisted artwork, should include comprehensive consent mechanisms covering both photographed persons and AI-generated representations that evoke identifiable individuals.

How DANDI supports music industry clients

DANDI.media advises artists, labels, managers, and graphic designers on album cover and music artwork legal questions:

• Pre-release clearance review of album covers and music artwork;
• Image release drafting for models, performers, and other persons appearing on artwork;
• AI clause integration for AI-generated or AI-assisted artwork;
• Cross-jurisdictional risk assessment for international distribution;
• Defence in alleged right-of-publicity or personality rights claims;
• Disputes with tattoo artists, photographers, and models claiming rights in artwork.

For consultation, book directly with Avv. Claudia Roggero or Avv. Donato Di Pelino.

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