Jazz Musician Turned into a Tattoo: Miles Davis Photographer’s Suit against Tattoo artist Kat Von D for Copyright Infringement
The tattoo industry has largely avoided cases of copyright infringement or other types of intellectual property suits based on an artist’s work. This may change as Jeffrey Sedlik, a well-known photographer, who photographed the prolific and well known jazz musician Miles Davis, is suing tattoo artist Kat Von D. for using his photograph to produce a tattoo for a colleague.
The heart of the issue
Kat Von D is a well-known tattoo artist who is featured on television shows such as LA Ink and Miami Ink. She developed a substantial following online and used that following to build her career. It later came to the attention of Jeffrey Sedlik that a photograph he took was used as a basis for one of her tattoos. Sedlik took the photo of Davis in 1989 and the original photo has accumulated a great deal of value.
Von D created the tattoo for a lighting technician who worked with her on a movie set. The technician provided the photograph as a reference for the tattoo and Von D did not charge the technician for the artwork. However, she did post images of the tattoo on social media and the tattoo could be viewed by the public. Sedlik found out about the tattoo in February 2021 and filed a lawsuit for copyright infringement.
How can a tattoo infringe?
Copyright protection protects the rights of anyone who creates an original work of art or for those that own the rights to the work of an artist under their employ. The rights given start when the work is created but a copyright holder can only bring an action to protect their rights once the work of art is registered with the Copyright office of the Library of Congress.
There are numerous rights from copyright protection, such as the right to reproduce the copyrighted work in copies or photocopies, prepare derivative works based on the material, and to distribute copies for sale. For example, Sedlik has exclusive rights to reproduce his photograph, prepare derivative works that are based on the photo, and distribute copies of the photograph for sale. While Kat Von D has not reproduced the photograph, nor has she distributed copies of it for sale, she did use it as a source of inspiration for her tattoo. This is arguably a derivative work of the Sedlik photograph.
Derivative works are based off an original copyrighted work and include major elements of the original. Here she directly duplicated the image to create the tattoo. It’s hard to argue that the tattoo isn’t a derivative work of Sedlik’s photo. The tattoo is identical to the photograph and shares substantial elements with the copyrighted work. Kat Von D will likely need to use a fair use defense in the pending trial.
The question then becomes whether Von D’s use of Sedlik’s photograph constitutes fair use, a type of defense to a copyright infringement suit.
What is Fair Use?
Fair use is a defense to copyright infringement based on a variety of factors.
The first factor is the purpose and character of the defendant’s use. Courts often favor fair use when the work of art was created for non-profit or public purposes. In Von D’s case she created the tattoo for a colleague without receiving payment. On the other hand, an image of the tattoo was published online, and she likely receives some form of commercial gain from the tattoo. Von D has a financial incentive through views on social media and the related ad revenue.
The next factor is the nature of the original copyrighted work. The nature of a work focuses on how creative the work of art is based on the characteristics of the work. Here, Sedlik’s photograph was created with a great deal of creativity and effort. The two agreed to pick a specific pose, use a certain background, and produce a photograph that expresses more creativity than a candid photo. As such, the original photograph is very creative, and this factor favors a fair use defense.
The next factor is the amount and substantiality of the portion of the copyrighted work that was copied. This factor determines how much the artist of the derivative work took from the copyrighted material to produce their art. It draws the line between inspiration and outright copying of another work. This factor does not favor Von D because the entire photo was duplicated in the tattoo. Some of the background shade was not included, but this omission is negligible as the entire image of Davis is duplicated in the tattoo including his likeness and the specific pose selected for the photograph. However, this factor again can change if there is a transformative work or use.
The final factor is the effect on the potential market or value of the copyrighted work. If a derivative work directly decreases the value of the copyrighted work by directly competing or superseding it in the same commercial market, that fact weighs against a finding of fair use. This factor could go either way. You could argue that the usage of Sedlik’s photograph as a tattoo could diminish the value of the original image if it can be reproduced. On the other hand, Von D’s tattoo can remind people of the photograph and may increase the demand for reproductions of the original physical photograph from Sedlik. In addition, it is uncertain whether the people in the market for a tattoo would be the same people that would purchase a very valuable photograph.
Is a tattoo transformative?
One other thing that could help Von D’s argument for fair use is if the tattoo is considered a transformative use or work since that changes analysis of some of the factors. Let’s consider each type.
Transformative work involves the addition of something new in the artwork that adds further purpose or a different character to the work. This is unlikely to apply in this case as the image of Davis as a tattoo is almost identical to Sedlik’s original photo. This is because the tattoo was intentionally made to be as close to the original photograph as possible. Viewers may receive the tattoo differently than in a photo, but the artistic expression is not very different because the tattoo is identical to the Sedlik photo – it’s just located on skin instead of paper or plastic!
Meanwhile, transformative use is the use of the same copyrighted work for a different use. An example is when established copyrighted works, like Disney characters, are used in educational material instead of for profit. This was explored in my prior paragraph about fair use. Von D is financially incentivized to create the tattoo and share it online.
The Supreme Court might know the answer!
This case could really go either way based on the decision of the jury if it goes to trial or if the decision is overturned on appeal. The decision will also be impacted by a case currently waiting to be heard by the Supreme Court of the United States. The Andy Warhol Foundation appealed a circuit court decision that a painting produced by the late Andy Warhol using a photograph by Lynn Goldsmith was not transformative work and therefore violated her rights as the copyright holder. The Warhol case will answer the question about whether a work of art can be transformative when it recognizably derives from the source material.
The Sedlik case will likely be impacted by the ruling of the Warhol case as Von D will not be able to say her work was transformative if the Supreme Court rules in favor of Goldsmith. Like Warhol, Von D’s work of art is recognizably derived from the source material. We will likely have to wait for the Warhol decision before we see the results of the Sedlik case.
Loyola University Chicago School of Law, JD ‘24