Ariel Goldberg is a 1L JD Candidate at Osgoode Hall Law School.
Typically, 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 (âSedlikâ) filed in the U. S. District Court for the Central District of California against Katherine Von Drachenberg, famously known as Kat Von D (âKat Von Dâ), 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 (âDavisâ) when she tattooed the image onto a clientâs body without authorization and posted photos of the tattoo on social media. On May 31, 2022, triable issues on substantial similarity and fair use.
Background
In , Kat Von D inked a tattoo of Sedlikâs Davis photograph on the arm of lighting technician Blake Farmer (âFarmerâ) 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 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 on her personal Instagram account.
Sedlikâs copyright infringement claims raise the 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 , 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 photographâs subject matter and pose because Sedlik . In Nike photographed Michael Jorden similar to professional photographer Rentmeesterâs original photograph of Michael Jordan leaping to dunk a basketball in a basketball net. The Ninth Circuit held that Nike did not infringe on Rentmeesterâs photograph because Rentmeesterâs 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 âSssh!â pose is not protectable, the Court states that the , 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 . First, the tattoo has a new meaning because Farmer selected the tattoo due to his personal identification with Davis, whereas Sedlikâs portrait commented on Davisâ . 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 â Â as a non-statutory factor of fair use.
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 Dâs freehand tattooing style created visual differences. However, 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 by the U. S. Supreme Court in The case questions if Andy Warholâs âPrince Seriesâ infringes professional photographer Lynn Goldsmithâs copyright protected photograph of Prince by using the photograph as an artistic reference without authorization. The decision on Kat Von Dâs tattoo until the U. S. Supreme Courtâs 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 towards balancing the rights of copyright owners and the right of tattoo ownersâ to privacy and bodily autonomy.Â
Further Reading
For more information on intellectual property law and tattoo art see Emily Prieurâs IPilogue article
For more information on The Andy Warhol Foundation for Visual Arts, Inc. v. Lynn Goldsmith, et al. see Tianchu Gaoâs IPilogue article