If you copyright a work of art, does that prevent other people from turning that image into a tattoo? That’s the question that will be decided by a California federal court jury, where photographer Jeffrey B. Sedlik’s case against famed tattoo artist Kat Von D is due to go to trial.
“This is, as far as I know, the first time a tattoo artist has been sued for an allegedly copyrighted image on a tattoo on a client’s body,” Aaron Moss, attorney for Greenberg Glusker Fields Claman & Machtinger LLP , who is not involved in the case, said Bloomberg.
Von D has leveraged his success as a tattoo artist in appearances on the reality TV series Miami ink And LA Ink. The Instagram account of his Los Angeles tattoo shop, 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 the 1989 Sedlik photograph of jazz legend Miles Davis, holding a finger to her lips.
In 2021, Sedlik responded by suing Von D, arguing that the tattoo was an unauthorized derivative work and that creating and posting it on social media constituted an infringement of his copyright.
After reviewing both sides’ legal documents, US District Judge Dale S. Fischer decided to take the case to trial. A jury will be asked to decide whether or not the tattoo falls within the doctrine of fair use, as well as whether Von D’s use of the Stedlik image denied the photographer a licensing opportunity.
Stedlik declined to comment on this story, and Artnet News received no response from Von D.
The potential ramifications of a ruling in the case are fascinating.
“A finding of infringement would effectively make 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 could pause tattoo artists who are asked to inked third-party images on their clients.”
“Holding tattoo artists civilly liable for copyright infringement will necessarily expose these artists’ clients to the same civil liability whenever they choose to get tattoos based on copyrighted source material, display their tattooed bodies in public, or share posts on social media. of their tattoos, Von D’s attorneys wrote in a legal filing, “This is not the law and it can’t be the law.”
Stedlik’s photo, which originally appeared on the cover of Jazziz magazine, appeared in Life annual issue of the magazine’s “Images of the Year”. The photographer said he believed he had previously licensed the portrait for use in a tattoo design.
“Sedlik has raised a tangible question as to whether there is a market for the future use of the portrait in tattoos,” Fischer wrote in his most recent court filing order.
“There was expert testimony in the case that it was an established practice in the tattoo industry not to obtain licenses for the original material,” Brankov said, “but the judge found that although this may be an established practice in the industry , this is not the case.This means that the established practice is legally compliant.
For his part, Von D insists that his version is transformative of the original image. He created the freehand tattoo and “added the look of movement by adding and blending waves of smoke around the perimeter of Miles Davis’ hair and hand; he created a feeling of melancholy; and eliminated the bare black background that dominates the photograph, “according to documents from his legal team.
Fischer found this argument convincing; he was less moved by the idea that simply transferring a photograph to the human body was an act of transformation, or that personal reasons for getting a Miles Davis tattoo changed the meaning of the work.
The recipient of the tattoo is a lighting technician named Blake Farmer, who worked with Von D on a film project. He inked his arm for free, using Sedlik’s photograph, provided by Farmer, as a reference.
The lawsuit claims that, despite having the design tattooed for free, Von D “received and enjoyed an indirect financial benefit in the form of advertising, promotion and goodwill” after sharing the tattoo photos on social media. (The farmer is not part of the cause.)
Sedlik is looking for Von D’s profits related to sharing the tattoo photo in question, as well as damages. He also wants Von D to remove all tattoo photos from his website and social media accounts.
The question of whether tattoo artists should grant a license to reproduce their art has also been the subject of legal controversy. In 2020, a U.S. federal judge ruled in favor of a video game company that had produced a game with tattooed NBA players, finding that players had the right to use body art as part of their likeness.
The outcome of the Miles Davis tattoo case could be influenced by the high-profile copyright lawsuit against the Andy Warhol Foundation directed to 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 her image was not a 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 licenses to other artists to create derivatives,” Sedlik told PhotoShelter. “When an artist creates a new work based on a photograph without authorization, the artist takes away from the photographer the fee normally applicable to the ‘artist’s reference’ use and any damage to the market for licensing the photograph to others.”
The judge did not refer to the Warhol case in his latest order, instead citing the 2017 ruling in Rentmeester versus Nikewho found that a sneaker company ad featuring Michael Jordan did not violate a similar photo of basketball star photojournalist Jacobus Rentmeester.
But Warhol still hangs over the next trial.
“Everyone is wondering how the Supreme Court will deal with the fair use doctrine in the Warhol Foundation case,” Branvov said. “The legal issues involved here are the same: whether the works are substantially similar and, if so, whether the secondary user’s work made fair use of the underlying work so that it was not necessary to obtain the license.”
Regardless of the outcome, however, it seems unlikely that Farmer will have to remove an illicit work of art from his body.
“The idea of forcing a person to undergo the potentially painful procedure of removing a tattoo,” added Brankov, “seems remote to inconceivable.”
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