A copyright infringement case that went to trial in Los Angeles last week (January 23) posed an interesting question: Is a tattoo based on a photo of a music icon an infringement of the photo’s copyright?
According to the jury, at least in this particular instance, the answer is no.
The case, which pitted photographer and artists’ rights advocate Jeffrey Sedlik against prominent former tattoo artist Kat Von D, was settled by jurors on Friday (January 26) after less than three hours’ deliberation, Bloomberg reported.
The jury agreed with the argument made by lawyers for Kat Von D (legal name Katherine von Drachenberg) that her tattooing an image of Miles Davis – based on a copyrighted and well-known image of the jazz artist – was “fair use” and didn’t infringe copyright.
Von D’s tattoo, and the images of it that she posted to social media, were not “substantially similar” to the original work, jurors concluded.
Fair use is the doctrine that copyrighted works can be used without permission in certain limited circumstances. US courts have established a number of criteria for what constitutes fair use, including whether the use of a copyrighted work is “transformative” (for instance, if it’s used for educational purposes or parody); how much of the original work is used; and what impact it may have on the commercial market for the original work.
Lawyers for Von D’s argued the work was “transformative,” in that there were some differences between the tattoo and the original photo, which was published in JAZZIZ magazine in 1989, and features Davis making a “shush” sign with his fingers in front of his face. The photo has become one of the most iconic images of the jazz artist, who died in 1991.
Von D’s lawyers also argued that the image was not made for commercial gain, as she tattooed the image on the arm of her friend Blake Farmer for free.
However, lawyers for Sedlik argued that she did gain financially from the tattoo by posting images of it, and images of her making it, on social media, which helped to promote Von D’s business, High Voltage Tattoo.
(Von D shut down the Los Angeles-based tattoo business in 2021, and moved her family to Indiana.)
Although there is no widespread practice of tattoo artists seeking authorization for the use of copyrighted images on tattoos, during pre-trial hearings, Sedlik’s lawyers presented evidence that Sedlik had previously licensed use of the photo to a tattoo parlor.
“If those two [images] are not substantially similar, then no one’s visual art is safe.”
Robert Allen, Glaser Weil Fink Howard Jordan & Shapiro LLP
The original complaint, filed in 2021 and available here, argued that both the tattoo and the social media images of the tattoo infringed on Sedlik’s copyright of the original photo.
In the wake of the jury’s ruling in Von D’s favor, a lawyer for Sedlik said there is “absolutely” grounds for appeal.
“It seems like a hurried decision that does not reflect the facts,” said Robert Allen of Glaser Weil Fink Howard Jordan & Shapiro LLP, as quoted by Bloomberg.
“There are certain issues that never should have gone to the jury,” Allen said, according to the New York Times. “The first, whether the tattoo and the photograph were substantially similar. Not only are they substantially similar, but they’re strikingly similar.”
He added: “If those two [images] are not substantially similar, then no one’s visual art is safe.”
However, Von D’s lawyer, Allen Grodsky of Grodsky Olecki & Puritsky LLP, had a very different take.
“This case should never have been brought,” the Times quoted him as saying. “It took the jury two hours to come to the same conclusion that everybody should have come to from the start: That what happened here was not an infringement.”
While the outcome of the case is likely to cause concerns among some intellectual property owners, it came as a relief to many in the tattoo business, who feared that a ruling in Sedlik’s favor could open them up for liability for tattoos they had created in the past, and could change the types of artworks that tattoo artists would be willing to create (i.e., no more tattoos of Bugs Bunny or Mickey Mouse).
“We’re not talking about a book that was published that didn’t reference the photographer,” Jason Anthony, owner of Golden Rule Tattoo in Phoenix, Arizona, told a local CBS affiliate. “We’re talking about a piece of art that’s on a human person that wants that on them.”
“It took the jury two hours to come to the same conclusion that everybody should have come to from the start: That what happened here was not an infringement.”
Allen Grodsky, Grodsky Olecki & Puritsky
The issue of bodily autonomy didn’t appear to play much of a role in the case, though it has been brought up by copyright experts observing the trial.
“This guy [Blake Farmer] is now sporting a celebrity’s likeness on his shoulder. If he were to appear in an advertisement or some other commercial setting, could the estate of Miles Davis assert a right of publicity claim seeking a cut (or even stop him altogether)?” asked copyright lawyer Aaron Moss on his blog in 2021.
If the case were settled in Sedlik’s favor, “that would seem to give the photographer an inordinate amount of control over this individual’s life and livelihood,” Moss commented.
The case’s outcome could pose questions for IP-centered industries such as music, which in recent years has focused more on “name and likeness” rights as part of its contracts and acquisitions.
Acquisitive music publisher Primary Wave has been a prominent player in this field, acquiring name and likeness rights as part of music rights acquisitions, for Luther Vandross, Prince, Stevie Nicks and others.
Major recording companies have also shown growing interest in name and likeness rights, including Universal Music Group, which launched a strategic partnership with Authentic Brands Group (ABG) in 2021, declaring that the two companies “will strategically market and position artists across a wide range of consumer touchpoints leveraging their name and likeness to drive opportunities in merchandise, memorabilia, licensing, brand experiences and media and entertainment, among many others.”
The issue of name and likeness rights has also become more urgent in the wake of the rapid development of generative AI, which has enabled the creation of deepfakes of celebrities, including the voice cloning of prominent musicians, as in the now-infamous case of the “fake Drake” track.
Policymakers are beginning to take notice. Earlier this month, a bipartisan group of congresspeople introduced the No AI FRAUD Act in the House of Representatives. If enacted into law, among other things, the bill would in effect create the US’s first nationwide “right of publicity” that protects against the unauthorized use of a person’s likeness, voice or other aspects of their identity.
Currently, the right of publicity is only recognized at the state level, where there is a patchwork of laws, with 19 US states overtly recognizing a right of publicity, while another 11 states have recognized the right of publicity as a matter of common law.Music Business Worldwide
