Tattoo artist Kat Von D and photographer Jeff Sedlik have been fighting a legal battle over an iconic photo turned into a tattoo. Earlier this week, Kat Von D appeared in a Los Angeles federal courtroom to fight copyright infringement claims.
The backstory
It all started when photographer Jeff Sedlik sued tattoo artist Kat von D (Katherine Von Drachenberg) in early 2021. Sedlik had alleged that Kat von D used his 1989 photo of Miles Davis as a reference for a tattoo she inked in March 2017 and shared on social media. This photo, which Sedlik exclusively sold on his Saatchi Art account, had been licensed for reproduction since its initial publication in JAZZIZ magazine in 1989.
Kat von D, known for her role in the reality TV series LA Ink and Miami Ink, tattooed the image on a client”s arm and posted it on her Instagram. Sedlik”s lawsuit claimed these posts were unauthorized reproductions and derivative works of his iconic photo, closely duplicating it.
Sedlik sought $150,000 in statutory damages for each work showing the tattoo, including any derivative works, and demanded the removal of all content referencing his image from various platforms. He also demanded compensation for any profits Kat von D and her studio earned from using the image and for any losses he suffered.
Before suing, Sedlik claimed that he”d tried to resolve the issue amicably through representatives. However, he alleged that Kat von D had ignored his efforts.
There was some uncertainty about how the law would treat this case. After all, tattoos are derivative works, and Kat von D”s income came from tattooing, not directly from the photo. However, Sedlik was granted his day in court in late 2022.
The U.S. District Judge Dale S. Fischer was influenced by the U.S. Supreme Court ruling in the Andy Warhol Foundation v. Lynn Goldsmith case. Initially, Judge Fischer ruled against copyright infringement in a summary judgment concerning the tattoo. However, the Warhol decision prompted a reevaluation. The judge eventually concluded that a jury should decide whether Von D’s tattoo and her social media posts had transformative characteristics, an essential factor in determining fair use.
The trial
In a recent trial, Kat von D”s lawyer Allen B. Grodsky said in his opening statement that she only used Sedlik”s photo for “inspiration” as she created a “completely different” work on her friend”s arm free of charge seven years ago, the Rolling Stone reports.
“You will see that there are many differences,” Grodsky told the jurors. He said that there were “differences in the position and shape of shadows, difference in the use of light, difference in the hairstyle, differences in the shape and rendering of the eyes.”
“Kat Von D”s interpretation of Miles Davis had a sentiment that was more [melancholic] than Mr. Sedlik”s. And you”ll see that it has movement that”s not found in his. Kat Von D did not attempt to monetize the tattoo in any way. She did not make photos of prints that she sold. She didn”t sell tee shirts or mugs. She didn”t sell products in any way.”
However, Sedlik claimed that it took him three years to plan the photo of Davis. He said he was drawing sketches and consulting with the trumpet icon. “I knew he played quietly to get audiences to lean in and relish every note,” Sedlik testified, as per the Rolling Stone. He explained how he came up with the “shhh” gesture in the photo.
“I went in and placed his fingers exactly in that arc to represent musical notation. I was building subliminal things in.”
Contrary to Kat Von D”s lawyer, Sedlik claimed that Kat Von D was “attempting to precisely replicate every aspect of the Iconic Miles Davis portrait in the form of a tattoo.”
Now, it’s all up to the jury. They must decide whether the tattoo falls under the “fair use” doctrine. The doctrine is crucial in enabling commentary, criticism, research, teaching, news reporting, and parody, among other important societal functions. Transformative works also fall within the fair use doctrine. However, the key is that the new work must be sufficiently different from the original, providing new insights or understandings. I guess the jury will now decide whether Kat’s tattoo differs enough from Sedlik’s image to be considered fair use.
[via the Rolling Stone]
