Kat Von D, a celebrity tattoo artist, won a lawsuit in federal court on Friday when a jury unanimously ruled that her reproduction of a photo of famed jazz musician Miles Davis in a tattoo did not violate copyright law.
The trial, which began this week in Los Angeles, was the latest dispute over what defines “fair use” of copyrighted material.
At issue was a 1989 photo taken of Davis by the plaintiff, Jeffrey Sedlick, a photographer. The photo, a portrait of Davis staring directly into the camera with a finger on his lips, was featured on the cover of JAZZIZ magazine, a publication that highlights the world of jazz.
In 2017, Kat Von D, whose real name is Katherine von Drachenberg, posted a photo on her Instagram page – where she has nearly 10 million followers – in which she tattooed the image on the arm of someone she identified as an acquaintance named Blake.
“I can't believe I get to tattoo a portrait of #MilesDavis for the first time! [thank you, Blake for letting me tattoo you!]“, is the headline.
The photo has more than 85,000 likes and was also shared on her Facebook page at the time.
The image of the tattoo was also later shared on the Instagram page of her tattoo shop, High Voltage Tattoo. Von D, who also owned a makeup line, closed the business in 2021.
Sedlick filed a copyright infringement lawsuit.
“This case should never have been filed,” Alan Grodsky, Kat Von D’s attorney, said Friday. “It took the jury two hours to come to the same conclusion that everyone should have come to from the start: that what happened here was not a violation.”
Sedlick plans to appeal the ruling, said his attorney, Robert Allen.
“Obviously we’re very disappointed,” Allen said. “There are certain issues that should never have gone to the jury. First, whether the tattoo and the photograph were substantially similar. Not only are they essentially similar, they are strikingly similar.”
How could a tattoo violate copyright?
The lawsuit was filed in 2021 under the Copyright Act of 1976, which lays the foundation for existing copyright law and essentially means that no one can steal an original work from its author if the author is the rights holder.
The law also introduced the concept of “fair use,” which allows certain unlicensed uses of copyrighted works to promote freedom of expression without having to pay a fee or obtain permission. This can include song parodies or television news stories that relate to a movie scene.
“The idea behind fair use is that creative works build on other creative works,” said Shubha Ghosh, a professor of intellectual property law at Syracuse University.
The lawsuit alleged several copyright violations, including reusing the tattoo itself, the social media posts, and publishing a sketch of the photo Kat Von D used for the tattoo.
Among other things, the plaintiff argued that Von D's reproduction of the photo as a tattoo did not fall under fair use because, in Sedlick's interpretation, it was used for a commercial purpose on her social media pages “to promote and sell.” support financially”. of goods and services from Kat Von D.”
“This case is not about tattoos,” Allen said. “This case is about ensuring that the works of visual artists are protected and cannot be used by others without permission.”
What constitutes fair use has long been the subject of legal disputes, such as whether the work was reproduced for commercial purposes rather than educational purposes, and how much of the work was reproduced and in what manner.
“Did the defendant take money that would otherwise have gone into the plaintiff's pocket?” Ghosh said.
The jury concluded that the reproductions of the photo did not infringe copyright.
The case could have changed tattooing.
If Kat Von D had lost, the case could have had far-reaching consequences, Ghosh said. On the one hand, tattoo artists may have become more cautious about the type of work they take on.
“If you're a tattoo artist and someone comes in and says, 'I want to get this tattooed on my body,' now you have to worry about, 'Well, who owns the copyright to this thing you gave me ?'” said Ghosh.
There were similar cases in the art world.
Last year, the U.S. Supreme Court ruled that Andy Warhol's repurposing of a photo of musician Prince taken by rock photographer Lynn Goldsmith did not fall under fair use.
The portrait was originally taken by Goldsmith in 1981 on behalf of Newsweek.
Three years later, around the time Prince released the Purple Rain album, Vanity Fair licensed Goldsmith's photos for one-time use by Warhol, who recreated them in 16 altered versions, one of which was used in the magazine.
After Prince's death in 2016, Vanity Fair's parent company, Condé Nast, released a commemorative issue dedicated to the musician and used another altered image from the series of Warhol, who died in 1987. Warhol's estate was paid $10,250 by Condé Nast. while Goldsmith received neither money nor credit.
Justice Sonia Sotomayor, who wrote the majority opinion, wrote that Goldsmith's “original works, like those of other photographers, are entitled to copyright protection, including from famous artists.”
In another 1994 case, the court ruled that parody falls within fair use in the case of rap group 2 Live Crew, which recorded a version of the Roy Orbison hit “Oh, Pretty Woman.” .