Celebrity tattoo artist Kat Von D won a legal battle in federal court on Friday when a jury unanimously ruled that her tattoo of famous jazz musician Miles Davis did not violate copyright law.
The trial, which began this week in Los Angeles, is the latest battle to define “fair use” of copyrighted content.
At issue is a 1989 photograph of Davis by photographer Jeffrey Sedlik, the plaintiff. The photo, a portrait of Davis looking straight at the camera with a finger on his lips, was published on the cover of Jazzys magazine, which highlighted the world of jazz.
In 2017, Kathryn von Dragenberg, who goes by the name Kathryn von Dragenberg, posted a photo on her Instagram page — where she has nearly 10 million followers — of herself tattooing the image on the arm of an acquaintance. Named Plague.
“Can't believe this is my first time tattooing #MilesDavis' portrait! [thank you, Blake for letting me tattoo you!]” is written in the title.
Sedlik filed a lawsuit alleging copyright infringement.
“This case should never have been brought,” Alan Gradsky, Kat Von D's attorney, said Friday. “The jury took two hours to reach the same conclusion that everyone should have reached from the beginning: What happened here was not a violation.”
Sedlik plans to appeal the verdict, said his attorney, Robert Allen.
“Obviously, we're very disappointed,” Allen said. “There are some issues that should never have gone to a jury. First, the drawing and the photograph were substantially similar. Not only were they substantially similar, they were very similar.
How does a tattoo violate copyright law?
The case was filed in 2021 under the Copyright Act 1976, which lays the foundation for the existing copyright law, and on the basis that no one can steal an original work from its author, provided the author is the owner.
The Act also introduced the concept of “fair use”, which allows for the promotion of freedom of expression for certain unlicensed uses of copyrighted works without payment or asking for permission. These include song parodies or television news segments referencing a movie scene.
“The idea behind fair use is that creative works create other creative works,” said Shuba Ghosh, a professor of intellectual property law at Syracuse University.
The suit claimed several copyright violations, including reusing the tattoo, social media posts and posting a sketch of the photo that Kat Von D used for the tattoo.
Among other arguments, the plaintiff said the Von D photo tattoo did not fall under fair use because, under Sedlik's interpretation, it was used on her social media pages for commercial purposes “to promote and solicit sales. Kate Van D's products and services.
“This case is not about tattoos,” Allen said. “This case requires visual artists to protect their work and not be used by others without permission.”
Fair use has long been the subject of legal controversy, such as whether works are reproduced for commercial purposes as opposed to educational, how much work is 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 the reproduction of the photograph did not infringe copyright.
The lawsuit may have changed tattooing.
Had Kate Van D lost, the stakes in the case would have had far-reaching consequences, Ghosh said. For one thing, tattoo artists may have been more cautious about the work they were taking on.
“If you're a tattoo artist and someone comes up and says, 'I want to tattoo this on my body,' you now have to worry about, 'Okay, who owns the copyright to the thing you gave me?' Ghosh said.
There are similar cases in the art world.
Last year, the US Supreme Court ruled that Andy Warhol's reproduction of a photo of musician Prince taken by rock photographer Lynn Goldsmith did not fall under fair use.
The portrait was originally shot in 1981 by Goldsmith while on assignment for Newsweek.
Three years later, when Prince released the “Purple Rain” album, Vanity Fair licensed a one-time use of Goldsmith's photos to Warhol, who reproduced them with 16 altered versions, one of which was used in the magazine.
After Prince's death in 2016, Condé Nast, Vanity Fair's parent company, published a memorial magazine dedicated to the musician, using a different altered image from a series produced by Warhol, who died in 1987. Goldsmith received no money or credit.
Justice Sonia Sotomayor, who wrote the majority opinion, wrote that Goldsmith's “original works, like other photographers, are entitled to copyright protection against famous artists.”
In another case from 1994, the court ruled that parody falls within fair use, involving the rap group 2 Live Crew, which recorded a version of the Roy Orbison hit “Oh, Pretty Woman.”