Written by: Nicholas Holmes
A first-of-its-kind copyright infringement trial began on January 23, 2024 between tattoo artist Katherine Von Drachenberg (“Kat Von D”) and photographer Jeff Sedlik (“Sedlik”). Sedlik accused Kat Von D of copyright infringement of his Miles Davis portrait; the tattoo artist reproduced the photo on the arm of her client. The original Sedlik photo and tattoo are reproduced below:
On January 26, 2024, a jury – after deliberating for less than 3 hours – found in favor of Kat Von D and ruled that she did not infringe on Sedlik’s Miles Davis’ portrait.
For a plaintiff to prevail on a copyright infringement suit, the plaintiff must prove (1) ownership of a valid copyright; and (2) that the defendant copied constituent elements of the work that are original without permission.
There is no question that Sedlik owns a valid copyright. Thus, the question that the jury needed to decide was whether Kat Von D’s tattoo copies protectible elements of the original photo. Kat Von D’s defense to the alleged copyright infringement was fair use – a defense (comprising four factors) that allows for copying of copyrighted material done for a limited and “transformative” purpose. Kat Von D argued that there was a lack of substantial similarity between the photo and the tattoo, that she had no reason to believe that using a photo as a tattoo could constitute copyright infringement, and the fact that she did not charge the client for the tattoo. The jury determined that copyright infringement did not occur, claiming that Kat Von D’s tattoo was not “substantially similar” to Miles Davis’ portrait. The jury, however, did not decide on whether the usage of the Miles Davis portrait was fair use.
Sedlik also claimed that fifteen of Kat Von D’s social media posts displaying images of the tattoo infringed on his copyright. According to the recent landmark decision in the Andy Warhol case, the jury had to decide not only on whether the tattoo itself fair use, but whether the subsequent social media posts are fair use as well. The jury decided that four out of the fifteen photos fell under the fair use doctrine.
Although the doctrine of fair use was not explicitly ruled on in the jury’s order, the decision that Kat Von D’s tattoo was not substantially similar could be used as a secondary defense by tattoo artists (keeping in mind the decision from the Central District of California is not binding on other districts within the state of California, or nationally) who may be hailed into court for a similar copyright infringement lawsuit. While this decision was a win for Kat Von D, it shows that a lawsuit against tattoo artists is a real possibility. Before needle goes to skin, tattoo artists may want to think before they ink.
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