Famous tattoo artist Kat Von D’s use of a famous photograph of jazz great Miles Davis has led to what is believed to be the first lawsuit over whether an image’s copyright protection extends to tattoos, opposing questions of artistic freedom and the autonomy of the body to the rights of photographers to own their creations.
Photographer Jeffrey B. Sedlik is suing Von D, who used his “Iconic Miles Davis Portrait” in a tattoo she inked on a colleague. Sedlik took the photo circa 1989, and it has appeared in publications around the world, including Life magazine’s annual “Pictures of the Year” issue.
The case is set to go to trial, after a California federal judge recently ruled that a jury must resolve disputes that include whether the image falls under the “fair use” doctrine. — a copyright infringement defense the U.S. Supreme Court will address this fall in a case involving Andy Warhol’s printing of a photo of musician Prince.
“This is, to the best of my knowledge, the first instance in which a tattoo artist has been sued for an allegedly copyrighted image in a tattoo on a client’s body,” said attorney Aaron Moss. at Greenberg Glusker Fields Claman & Machtinger LLP.
Its result could help define the limits of fair use in copyright and the risk of chilling the expression of tattoo artists and others hoping to create works based on copyrighted images, according to the lawyers.
Von D, whose full name is Katherine Von Drachenberg, has appeared on reality shows such as “Miami Ink” and “LA Ink” and owns a tattoo company called High Voltage.
She inked a Miles Davis tattoo on Blake Farmer, a lighting designer with whom Von D worked on a film project. Farmer provided Sedlik’s photo as a reference, which Von D used to create the tattoo, free of charge.
Sedlik’s lawsuit asked the court to require Von D and his company to remove any content incorporating the portrait from print and web publications, as well as social media accounts. He also demanded all of Von D’s profits from the infringement and additional damages.
Von D argues that the watermark is a fair use of the photograph under copyright law, pointing out the lack of commercial profit from the watermark, among other things. Von D’s attorneys did not respond to a request for comment.
In late May, Judge Dale Fischer of the U.S. District Court for the Central District of California partially dismissed Von D’s argument that his work tattooing the photograph was transformative, ruling that the tattoo does not simply create an inherently different meaning. by being located on the human. body.
She left the larger question of fair use to a jury, which will also decide how much Von D profited from social media posts featuring the tattoo, even though she was not paid for the work itself.
The judge did not address Von D’s more novel argument that “fundamental rights to bodily integrity and personal expression” also weigh in favor of a finding of fair use. Although not one of the four factors set out in the statute, courts and juries may consider other factors, the court wrote. Moss agreed.
“You must weigh the rights of the interest the copyright holder has in controlling the public display of their work, against the right to privacy and bodily autonomy of the individual who has the tattoo. “, did he declare. “The problem with that, I guess, is that it would give any tattoo artist a kind of freedom to use copyrighted images, for free and without impunity.”
Farmer, the recipient of Miles Davis’ tattoo, is not a defendant in the case. If he had been and Sedlik had sought an injunction, that would be “a very different case,” Moss said.
“The idea that you would force someone to have a tattoo removed, I think, is fundamentally at odds with the right to bodily autonomy which is constitutionally protected,” he said.
Viva Moffat, a professor at Sturm College of Law, said it would be difficult for Von D to make the bodily integrity argument because “it’s not his body that’s at issue.”
As for the medium and the canvas, “it’s not that different from other copyright issues or issues that have come up,” Moffat said. For her, the heart of the matter is the question of what happens when you take someone’s copyrighted photograph and translate it to a different medium for a different purpose.
All eyes on Andy Warhol
This issue is already before the Supreme Court, which will hear oral argument in October on whether a print by Andy Warhol – commissioned by Vanity Fair for an article and later used by the artist for several works additional – infringes a copyrighted photo of Prince.
The high court could set a precedent on fair dealing, particularly on the question of when a work is transformed enough to avoid copyright infringement, and affect the case Sedlik v Von D. Sedlik is a expert witness in the Warhol case, according to court records. He declined to comment.
Lawyers say that even if the jury is due to hear the tattoo case in September, the trial or final decision could be delayed until the Supreme Court rules on the Warhol case.
“My first thought is that this is going to have a very big impact on that,” said Yvette Liebesman, a professor at Saint Louis University School of Law. She said that in either case, to create the Warhol print or tattoo, “you have to start with a photograph of that person.” And in both cases, the question boils down to “How much does the photographer own?”
Difficult questions for the jury
The jury will struggle to deal with the complexity of the tattoo case, especially combined with the imminent threat Warhol decision and disagreement over the boundaries of fair use, even among the judges, Moss said. “How is the jury supposed to figure this out?”
He said he would be interested to see the jury selection, saying tattooed jurors might ask, “Wow, what are the implications of this fight? If I find copyright infringement, am I essentially a walking infringement myself? »
Other lawyers have pointed to the need for the judge to give the jury clear instructions on how to deal with fair use analysis and bodily integrity allegations. Some say the case could have troubling consequences for tattoo artists, who may fear being sued for creating tattoos that reference copyrighted images.
“Even the trial itself, even without a result, could have a chilling effect,” Moffat said. “But certainly, an outcome where the tattoo artist is held liable for copyright infringement, I have to imagine that will be a chilling effect for a tattoo artist, and perhaps more broadly.”
Copyright 2022 Bloomberg.