The use of copyrighted images and tattoos is fraught with a legal dispute between tattoo artist Kat Von D and photographer Jeffrey B. Sedlik.
Can a copyrighted work of art be turned into a tattoo? This question will soon be answered by a jury in California. In March 2017, famed tattoo artist Kat Von D posted several photographs of a tattoo (the tattoo) of Miles Davis that she inked on a co-worker. The photograph (photo) she used as inspiration, which can be seen in one of her articles, was taken by photographer Jeffrey B. Sedlik. In 2021, Sedlik sued Von D in federal court for copyright infringement. The court partially denied Sedlik’s and Von D’s motions for summary judgment due to litigious issues of substantial similarity, processability, commercial use and existence of a market for future use of the photo for tattoos, and the first and fourth factors of fair use. .
The photo in the center of the costume was taken in 1989 and originally appeared on the cover of Jazziz magazine, but has since appeared in publications around the world, including Life magazine’s annual “picture of the year” issue. Additionally, Sedlik licensed the photo for a variety of uses and believed he had also licensed the photo for use in a different tattoo, but “may have denied requests if he had concerns about the quality of the tattoo. work”.
Von D inked the tattoo on his lighting technician, Blake Farmer. While researching the tattoo, Farmer and Von D both admitted to finding the photo online after a Google search; however, Von D also admitted to downloading and printing the photo, displaying it in her shop, and using it as a reference while she completed the tattoo. Before tattooing Farmer, Von D also created a line drawing of the Photo by tracing the Photo over a lightbox. She used this line art to create a stencil which she transferred to Farmer’s skin and “freehanded” the rest of the tattoo. After the tattoo was completed, Von D posted numerous photos and videos of the tattoo on his personal Instagram and on the Instagram of his tattoo studio, High Voltage. The caption on the posts read: “portrait I tattooed at @highvoltagetat” and “It still amazes us that @thekatvond can make a face as majestic and deep as this emerges from flesh!!!” Von D received no payment for the tattoo, but the posts received tens of thousands of likes.
Sedlik’s original complaint alleged that Von D infringed on her copyrighted work and her claim that she created the portrait was falsification of copyright management under Section 1202 of the DMCA . Von D maintained that she did not infringe on Sedlik’s portrait because although her process of making the tattoo could be considered a copy, she did not copy any of the copyrightable elements of the photo. Furthermore, Von D argued that even though she copied the copyrightable elements of the photo, the watermark qualified as fair use because the work was transformative and not commercial. The judge partially denied both parties’ motions for summary judgment and determined that there were trialable issues relating to both parties’ claims.
The questions left to the jury to decide could reshape the future of copyright fair use and the risk posed to tattoo artists by creating work based on copyrighted images. While the judge partially dismissed that the tattoo was not transformative simply because it was located on the human body, whether Von D profited from the social media posts is left to the jury. Further, although the court found that Sedlik met the first prong of the infringement test (valid copyright ownership), the court found that Sedlik only partially satisfied the second prong of the test (copying constituent parts of the work which are original). Using the Ninth Circuit’s two-part intrinsic and extrinsic substantial similarity test, the court determined, under the extrinsic test, that the two works shared certain similarities that were protectable; however, the court did not definitively conclude that the works were objectively similar. Moreover, the court decided that the intrinsic test was a problem for the jury. The central issue for the jury to decide is whether there is copyright infringement when a copyrighted work is translated into a different medium for different purposes. The jury may soon have their answer as the issue is set to be argued in the Supreme Court in October via Andy Warhol’s print for Vanity Fair based on a copyrighted photo of Prince. Sedlik is even an expert witness in the Warhol case, and wrote an Amicus Curiae brief against the Warhol Foundation. Notwithstanding the Warhol In this case, if the jury decides that Von D should be held liable for copyright infringement, there will likely be a detrimental impact on the tattoo industry and potentially on other fields of art and Intellectual property. Conversely, if the jury decides that Von D should not be held liable for copyright infringement, this poses a potential threat to the protection of artists’ works.