Ariel Goldberg is a 1L JD Candidate at Osgoode Hall Law School.
Typically, tattoo aftercare instructions include strictly hygienic recommendations, but tattoo artist Kat Von D might have a unique suggestion: prepare to be an exhibit in a copyright infringement lawsuit.
Back on February 7, 2021, award-winning professional photographer Jeffrey B. Sedlik (“Sedlik”) filed a complaint in the U. S. District Court for the Central District of California against Katherine Von Drachenberg, famously known as Kat Von D (“Kat Von D”), and her companies Kat Von D, Inc. and High Voltage Tattoo, Inc. for copyright infringement under the Copyright Act of 1976. Sedlik claims that Kat Von D infringed the copyright protection of his iconic photograph of world-famous jazz musician Miles Davis (“Davis”) when she tattooed the image onto a client’s body without authorization and posted photos of the tattoo on social media. On May 31, 2022, Judge Dale S. Fischer found triable issues on substantial similarity and fair use.
Background
In March 2017, Kat Von D inked a tattoo of Sedlik’s Davis photograph on the arm of lighting technician Blake Farmer (“Farmer”) for free. Prior to the tattoo sessions, Farmer selected the image from a Google search. Kat Von D did not request authorization or a license to reproduce the image. To freehand ink the tattoo, Kat Von D created a stencil by using a light box to trace the Davis photograph. On March 18, 2017, Kat Von D posted an image on her personal Instagram of herself using the Davis image as a reference while inking the tattoo. On May 16, 2017, Kat Von D posted the final image of the tattoo on her personal Instagram account.
Sedlik’s copyright infringement claims raise the novel issue of whether a tattoo artist commits copyright infringement when replicating a copyright protected image as a tattoo. In comparison, previous copyright infringement cases over tattoo art focus on an existing tattoo being reproduced in another work rather than the copying of a reference image. For example, in Alexander v. Take-Two Interactive Software, Inc., a tattoo artist sued the video game producer Take-Two for copying in a video game series six tattoos that the tattoo artist inked on World Wrestling Entertainment (WWE) wrestler Randy Orton.
The Arguments
Kat Von D claims Sedlik does not have protection over the photograph’s subject matter and pose because Sedlik “cannot own a legal monopoly [on] the idea of Miles Davis making a ‘Sssh!’ symbol with his fingers”. In Rentmeester v. Nike, Inc., Nike photographed Michael Jorden similar to professional photographer Rentmeester’s original photograph of Michael Jordan leaping to dunk a basketball in a basketball net. The Ninth Circuit held that Nike did not infringe on Rentmeester’s photograph because Rentmeester’s copyright protection cannot prevent photographers from the idea of Jordan leaping, rather only the specific details expressed in the photo he took. While the Court agrees that the ‘Sssh!’ pose is not protectable, the Court states that the “selection and arrangement of elements” , such as lighting and camera angle, are protectable.
Kat Von D argues that the use of the photograph in creating the tattoo is fair use because the tattoo is transformative for three reasons. First, the tattoo has a new meaning because Farmer selected the tattoo due to his personal identification with Davis, whereas Sedlik’s portrait commented on Davis’ “use of silence and negative space in his music” . Second, the tattoo has a new meaning by virtue of being a tattoo because tattoos have personal meaning to their wearers. Third, Kat Von D created her own interpretation by using a freehand method of inking the tattoo. She added movement to the hair, eliminated the black background and created a new melancholy aesthetic. Interestingly, Kat Von D urges the Court to consider “fundamental rights of bodily integrity and personal expression” as a non-statutory factor of fair use.
In response, the Court rejected the argument that the tattoo has a different meaning solely because it is placed on the human body. The Court was more convinced that Von D’s freehand tattooing style created visual differences. However, Sedlik claims that these differences do not make the tattoo transformative because the differences only arise from the medium of tattooing.
Moving Forward
The broader issue of translating a copyright protected photograph into a different medium with a different purpose will be addressed in October by the U. S. Supreme Court in The Andy Warhol Foundation for The Visual Arts, Inc. v. Lynn Goldsmith, et al. The case questions if Andy Warhol’s “Prince Series” infringes professional photographer Lynn Goldsmith’s copyright protected photograph of Prince by using the photograph as an artistic reference without authorization. The decision on Kat Von D’s tattoo could be delayed until the U. S. Supreme Court’s decision on Andy Warhol because the case could set precedent for fair use, specifically when the use of the original work is transformative enough to avoid copyright infringement.
The outcome of this case may alter the tattoo industry. Clients often request tattoos of Google-searched images or copyright protected works like album covers. The possibility of a tattoo artist being liable for copyright infringement creates complex implications for what tattoo artists are willing to ink as tattoos. More generally, the case raises an interesting consideration towards balancing the rights of copyright owners and the right of tattoo owners’ to privacy and bodily autonomy.
Further Reading
For more information on intellectual property law and tattoo art see Emily Prieur’s IPilogue article “Traditional Tattoos on the Red Carpet: Continuing the Conversation of Collective Ownership”.
For more information on The Andy Warhol Foundation for Visual Arts, Inc. v. Lynn Goldsmith, et al. see Tianchu Gao’s IPilogue article “Copyright Infringement by Andy Warhol in his Celebrity Silkscreen Series”.