Celebrity tattoo artist Kat Von D won a legal battle in federal court on Friday when a jury unanimously ruled that her copying of iconic 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 is known as the “fair use” of copyrighted material.
At issue was a 1989 photo taken of Davis by plaintiff Jeffrey Sedlec, the photographer. The photo, a photo of Davis staring directly into the camera with one finger to his lips, was published on the cover of JAZZIZ, a magazine that highlighted the world of jazz.
In 2017, Kat Von D, whose first name is Katherine von Drachenberg, posted a photo on her Instagram page — where she has nearly 10 million followers — of herself tattooing the image on the arm of someone she identified as an acquaintance. His name is Blake.
“I can't believe this is my first time tattooing a #MilesDavis! [thank you, Blake for letting me tattoo you!]” reads the comment.
Sedlick filed a lawsuit alleging copyright infringement.
“This case should never have been brought,” Alan Grodsky, Kat Von D's attorney, said on Friday. “It took the jury two hours to reach the same conclusion that everyone should have reached from the beginning: that what happened here was not a violation.”
His lawyer, Robert Allen, said Sedlik intends to appeal the ruling.
“Obviously we're very disappointed,” Allen said. “There are some issues that should never go to a jury. One, is whether the tattoo and the image are substantially similar. Not only are they substantially similar, they are strikingly similar.
How can tattoos violate copyright law?
The lawsuit was filed in 2021 under the Copyright Act of 1976, which lays the foundation for current 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 ask for permission. This can include parodies of songs or television news clips that reference a movie scene.
“The idea behind fair use is that creative works depend on other creative works,” said Shobha Ghosh, a professor of intellectual property law at Syracuse University.
The lawsuit alleged numerous copyright violations, including reuse of the tattoo itself, social media posts, and the publication of a sketch of the photo Kat Von D used to make the tattoo.
Among other arguments, the plaintiff said that Von D's reproduction of the image in the form of a tattoo did not fall under fair use because, under Sedlick's interpretation, it was used for a commercial purpose on her social media pages to “promote and induce a sale.” of goods and services provided by Kat Von D.”
“This case is not about tattoos,” Allen said. “This case is about protecting the works of visual artists, and not using them without permission by others.”
What constitutes fair use has long been the subject of legal disputes, such as whether a work has been reproduced for commercial, rather than educational, purposes, how much of the work has been reproduced and in what way.
“Did the defendant take money that would otherwise have gone into the plaintiff’s pocket?” Ghosh said.
The jury ruled that copies of the image did not infringe copyright.
The issue could have been changed with a tattoo.
If Kat Von D had lost, the stakes of the case could have had far-reaching consequences, Ghosh said. For one thing, tattoo artists may have become more careful about the type of work they do.
“If you're a tattoo artist, and someone comes in and says, 'I want to get this tattoo on my body,' now you have to worry about, 'Okay, who has the copyright to this thing you gave me?'” Ghosh said.
There were similar cases in the art world.
Last year, the US Supreme Court ruled that Andy Warhol's reuse of a photo of musician Prince taken by rock photographer Lynn Goldsmith did not fall under fair use.
The photo was originally taken in 1981 by Goldsmith while on assignment for Newsweek magazine.
Three years later, when Prince released the album “Purple Rain,” Vanity Fair licensed the images from Goldsmith for one-time use by Warhol, who recreated them in 16 edited versions, one of which was used in the magazine.
After Prince's death in 2016, Condé Nast, Vanity Fair's parent company, published a commemorative issue dedicated to the musician, and used a different edited image from the series produced by Warhol, who died in 1987. Condé Nast paid Warhol's estate $10,250. While Goldsmith received no money or credit.
“Goldsmith's original works, like those of other photographers, deserve copyright protection, even against famous artists,” Justice Sonia Sotomayor, who authored the majority opinion, wrote.
In another case from 1994, the court ruled that parody fell within fair use, in connection with a case involving the rap group 2 Live Crew, which recorded a version of Roy Orbison's hit song “Oh, Pretty Woman.”
“Travel junkie. Coffee lover. Incurable social media evangelist. Zombie maven.”