Kat Von D, a celebrity tattoo artist, won a legal battle in federal court on Friday when a jury ruled unanimously that her reproduction of a photo of the celebrated jazz musician Miles Davis in a tattoo did not violate copyright law.
The trial, which began this week in Los Angeles, was the latest battle in what defines “fair use” of copyrighted material.
At issue was a 1989 photo that the plaintiff, Jeffrey Sedlik, a photographer, took of Davis. The photo, a portrait of Davis staring straight into the camera with one finger on his lips, was published on the cover of JAZZIZ magazine, a publication that highlighted the world of jazz.
In 2017, Kat Von D, whose given name is Katherine von Drachenberg, posted a photo to her Instagram page — where she has almost 10 million followers — of her inking a tattoo of the image on the arm of a person she identified as an acquaintance named Blake.
“Can’t believe this is first time I’ve gotten to tattoo a portrait of #MilesDavis! [thank you, Blake for letting me tattoo you!]” the caption reads.
The photo has more than 85,000 likes and was also shared on her Facebook page at the time.
The image of the tattoo would also later be shared on the Instagram page for her tattoo shop, High Voltage Tattoo. Von D, who has also owned a makeup line, closed the shop in 2021.
Sedlik filed a lawsuit claiming copyright infringement.
“This case should never have been brought,” Alan Grodsky, Kat Von D’s lawyer, said on Friday. “It took the jury two hours to come to the same conclusion that everybody should have come to from the start: That what happened here was not an infringement.”
Sedlik plans to appeal the verdict, his lawyer, Robert Allen, said.
“Obviously, we’re very disappointed,” Allen said. “There are certain issues that never should have gone to the jury. The first, whether the tattoo and the photograph were substantially similar. Not only are they substantially similar, but they’re strikingly similar.”
How could a tattoo infringe upon copyright law?
The lawsuit was filed in 2021 under the Copyright Act of 1976, which lays the foundation for existing copyright law, and basically means that no one can steal an original work from its author, if the author is the rights holder.
The act also introduced the concept of “fair use,” which allows for certain unlicensed uses of works that are protected by copyrights to promote freedom of expression without having to pay a fee or asking for permission. This could include song parodies or television news segments referencing a movie scene.
“The idea behind fair use is that creative works build upon other creative works,” said Shubha Ghosh, an intellectual property law professor at Syracuse University.
The lawsuit claimed several copyright violations, including reuse of the tattoo itself, the social media posts and the posting of a sketch of the photo that Kat Von D used to make the tattoo.
Among other arguments, the plaintiff said that Von D’s reproduction of the photo as a tattoo didn’t fall under fair use, since, under Sedlik’s interpretation, it was used for a commercial purpose on her social media pages “to promote and solicit the sale of goods and services of Kat Von D.”
“This case is not about tattoos,” Allen said. “This case is about the visual artists having their work protected, and not used without permission by others.”
What constitutes fair use has long been a subject of legal disputes, such as whether the work was reproduced for commercial purposes, as opposed to educational ones, and how much of the work was reproduced and in what way.
“Did the defendant take money that otherwise would have gone to the plaintiff’s pocket?” Ghosh said.
The jury ruled the reproductions of the photo did not violate copyright.
The case could have changed tattooing.
If Kat Von D had lost, the case’s stakes could have had far-reaching consequences, Ghosh said. For one thing, tattoo artists might have become more cautious about the kind of work they take on.
“If you’re a tattoo artist, somebody comes in and says, ‘I want to get this tattooed on my body,’ you now have to worry about, ‘Well, who has a copyright of that thing you gave me?’” Ghosh said.
There have been similar cases in the art world.
Last year, the U.S. Supreme Court ruled that Andy Warhol’s repurposing of a photo of the musician Prince taken by the rock photographer Lynn Goldsmith did not fall under fair use.
The portrait was originally shot in 1981 by Goldsmith while on assignment for Newsweek.
Three years later, around when Prince released the album “Purple Rain,” Vanity Fair licensed the photos from Goldsmith for a one-time use by Warhol, who recreated it with 16 altered versions, one of which was used in the magazine.
After Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a commemorative issue dedicated to the musician, and used a different altered image from the series produced by Warhol, who died in 1987. Warhol’s estate was paid $10,250 by Condé Nast, while Goldsmith received no money or credit.
Justice Sonia Sotomayor, who penned the majority opinion, wrote that Goldsmith’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
In another case from 1994, the court ruled that parody fell within fair use, in relation to a case involving the rap group 2 Live Crew, which had recorded a version of the Roy Orbison hit “Oh, Pretty Woman.”
