If you protect a piece of art, does that prevent other people from turning that image into a tattoo? This is the question that must be decided by a jury in federal court in California, where the case of photographer Jeffrey B. Sedlik against the famous tattoo artist Kat Von D must be judged.

“This is, to the best of my knowledge, the first instance in which a tattoo artist has been sued for an allegedly copyrighted image on a tattoo on a client’s body,” Aaron Moss, attorney at Greenberg Glusker Fields Claman & Machtinger LLP, which is not involved in the case, says Bloomberg.

Von D turned her success as a tattoo artist into appearances on the reality series miami ink and LA ink. The Instagram account of his Los Angeles tattoo parlor, High Voltage, has more than 900,000 followers.

In March 2017, Von D, whose legal name is Katherine Von Drachenberg, posted the first of two Instagram posts of a tattoo based on a 1989 Sedlik photograph of jazz legend Miles Davis, holding a finger to his lips. .

Photo by Jeffrey B. Sedlik of Miles Davis. Photo courtesy of Court Records.

In 2021, Sedlik responded by suing Von D, claiming that the tattoo was an unauthorized derivative work and that its creation and posting on social media violated his copyright.

After reviewing legal documents from both parties, U.S. District Judge Dale S. Fischer decided to take the case to court. A jury will be asked to decide whether or not the tattoo falls under the doctrine of fair use, as well as whether Von D’s use of Sedlik’s image denied the photographer a license opportunity.

Sedlik declined to comment for this story, and Artnet News has not heard from Von D’s attorneys.

The potential ramifications of a decision in this case are fascinating.

“A finding of infringement would make the public display of the tattooed person’s arm an act of infringement,” Amelia Brankov, a copyright attorney not involved in the case, told Artnet News. “This might give tattoo artists who are asked to ink third-party images on their clients pause.”

“Holding tattoo artists civilly liable for copyright infringement will necessarily expose the clients of these artists to the same civil liability whenever they choose to get tattoos from copyrighted sources. displaying their tattooed bodies in public or sharing their tattoos on social media,” Von D’s attorneys wrote in a legal filing. “That’s not the law and can’t be the law.”

Kat Von D's Miles Davis tattoo, shared on her Instagram.  Screenshot of the court file.

Kat Von D’s Miles Davis tattoo, shared on her Instagram. Screenshot of the court file.

Sedlik’s photo, which originally appeared on the cover of Jazziz magazine, was featured in Life magazine’s annual “Pictures of the Year” issue. The photographer said he thought he had already cleared the portrait for use in a tattoo design.

“Sedlik has raised a justifiable question as to whether there is a market for the future use of the portrait in tattoos,” Fischer wrote in his final order sending the case to trial.

“There was expert testimony in the case that it was established practice in the tattoo industry not to license source material,” Brankov said, “but the judge found that, although this may be the established practice in the industry, it is not.This does not mean that the established practice is in accordance with the law.

For his part, Von D insists that his version is transformative of the original image. She created the tattoo freehand and “added the look of movement by adding and shading waves of smoke around the perimeter of Miles Davis’ hair and hand; created a feeling of melancholy; and eliminated the stark black background that dominates photography,” according to documents filed by his legal team.

Fischer found this argument persuasive; he was less moved by the idea that the simple transfer of a photograph to the human body was a transformative act, or that the personal reasons for getting a Miles Davis tattoo changed the meaning of the work.

The recipient of the tattoo is a lighting designer named Blake Farmer, who worked with Von D on a film project. She inked her arm for free, using Sedlik’s photograph, which Farmer provided, as a reference.

The lawsuit argues that despite the free tattoo of the design, Von D “received and enjoyed indirect economic benefits in the form of publicity, promotion and goodwill” after sharing photos of the tattoo on social media. (The farmer is not a party to the lawsuit.)

Sedlik is claiming Von D’s profits from sharing the photo of the tattoo in question, as well as damages. He also wants Von D to remove all photos of the tattoo from his website and social media accounts.

The question of whether tattoo artists must grant a license for the reproduction of their art has also been the subject of legal wrangling. In 2020, a US federal judge ruled in favor of a video game company that produced a game featuring NBA players with tattoos, ruling that players had the right to use body art in within their resemblance.

Andy Warhol's portrait of the Prince superimposed over Lynn Goldsmith's original photograph of the musician, as reproduced in court documents.

Andy Warhol’s portrait of the Prince superimposed over Lynn Goldsmith’s original photograph of the musician, as reproduced in court documents.

The outcome of the Miles Davis tattoo case could be influenced by the high-profile copyright lawsuit against the Andy Warhol Foundation in the United States Supreme Court. A lower court had previously found in favor of photographer Lynn Goldsmith that Andy Warhol’s Prince screenprint based on his image was not fair use.

In an interesting wrinkle, Sedlik is an expert witness for Goldsmith.

“Photographers are in the business of licensing their copyrights to others, including licensing other artists to create derivative works,” Sedlik’s brother and attorney, Gary Sedlik, told PhotoShelter. “Where an artist creates a new work based on a photograph without permission, the artist forfeits the photographer the licensing fees normally applicable to the use of the ‘artist reference’ and any damages to the market for the license of photography to others.”

The judge did not reference the Warhol case in his latest order, instead citing the 2017 decision in Rentmeester vs. Nikewhich concluded that a sneaker company ad featuring Michael Jordan did not infringe on a similar photo of the basketball star by photojournalist Jacobus Rentmeester.

Photograph of Michael Jordan by Jacobus Rentmeester and Nike's Michael Jordan ad.  The court found that the ad was not infringing.

Photograph of Michael Jordan by Jacobus Rentmeester and Nike’s Michael Jordan ad. The court found that the ad was not infringing.

But Warhol still looms large in the upcoming trial.

“Everyone is wondering how the Supreme Court will approach the doctrine of fair use in the Warhol Foundation case,” Branvov said. “The legal issues at stake here are the same: are the works substantially similar and, if so, whether the secondary user’s work has made fair use of the underlying work, such that no license had to be obtained.”

Whatever the outcome, however, it seems unlikely that Farmer will have to remove counterfeit artwork from his body.

“The idea of ​​forcing a person to undergo the potentially painful procedure of removing a tattoo,” Brankov added, “seems remote or even inconceivable.”

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