Is a tattoo based on a photo of a music icon an infringement of the photo’s copyright?
That’s the key question in an unprecedented jury trial that began in California on Tuesday (January 23), in which the photographer behind a famous 1989 photo of Miles Davis has taken well-known tattoo artist Kat Von D to court, alleging she violated his copyright on the photo when she put a tattoo based on the photo on a friend’s arm, and then shared photos of it online.
The case has potentially large implications for IP-centered industries such as the music business, which in recent years has increasingly focused on “name and likeness” rights in contracts and acquisitions.
It’s a common practice for people to get tattoos of copyright-protected characters such as Bugs Bunny or Mickey Mouse, and conventionally, tattoo artists haven’t asked rightsholders like Warner Bros. or Disney for a license to do so.
The case could also have implications for bodily autonomy and free expression – given that the tattoo in question has been indelibly stamped onto the arm of Blake Farmer, a friend of Kat Von D.
In 2021, photographer Jeffrey Sedlik filed a complaint in the US District Court for the Central District of California against Von D, along with her businesses Kat Von D Inc. and High Voltage Tattoo Inc., alleging that she violated his copyright on a famous image of Miles Davis that appeared on the cover of JAZZIZ magazine in 1989, and has since become an iconic image of the jazz artist.
The image, featuring Davis making a “shushing” motion with his hand in front of his face, can be seen here.
“[Kat Von D] distributed these unlawful and unauthorized reproductions and derivatives on the internet, throughout the world, for a commercial purpose – to promote and solicit the sale of goods and services of Kat Von D and her various commercial brands and services…”
Legal complaint on behalf of Jeffrey Sedlik
Sedlik alleged in his initial complaint, which can be read in full here, that Von D violated his copyright multiple times – both by recreating it as a tattoo on Farmer’s arm, and by posting images to social media of the making of the tattoo and the finished product.
Kat Von D “distributed these unlawful and unauthorized reproductions and derivatives on the internet, throughout the world, for a commercial purpose – to promote and solicit the sale of goods and services of Kat Von D and her various commercial brands and services and the businesses of KVD, Inc. and High Voltage Tattoo,” Sedlik’s 2021 complaint alleged.
Kat Von D, whose legal name is Katherine von Drachenberg, became somewhat famous through regular appearances on the reality shows Miami Ink and LA Ink.
Jeffrey Sedlik is an award-winning photographer and a “leading expert on image licensing,” according to his LinkedIn page. He is a past president of American Photograhic Artists and CEO of PLUS Coalition, a non-profit “on a mission to simplify and facilitate the communication and management of image rights.”
In response to the complaint, lawyers for Von D have argued that the tattoo falls within “fair use,” the doctrine that copyrighted works can be used without permission in certain limited circumstances. They argue that Von D’s use of the work was “transformative,” and that it was not made for commercial gain, in that Von D didn’t charge Blake for the tattoo.
Lawyers for Sedlik have argued that Von D nonetheless stood to gain commercially from the tattoo by promoting it on her social media accounts.
Jurors in the case will have to determine whether or not Von D’s use of the amounts to fair use.
In court on Tuesday, Von D’s lawyer, Allen Grodsky of Grodsky Olecki & Puritsky LLP, told jurors that Kat Von D had never heard of tattoo artists purchasing licenses to use photos for tattoos, had never done so herself and “nobody’s ever complained.”
Sedlik, however, introduced evidence in earlier court filings showing that he has previously licensed his Miles Davis photo to tattoo artists. A document filed with the District Court showed that he had licensed the image to Rize of the Machinez Tattoo Studio in 2014.
“Don’t be fooled by the, well, everyone else is doing it, so it’s okay,” argument, Sedlik’s attorney, Robert Allen, a partner in Glaser Weil LLP’s Intellectual Property Department, told jurors.
Under US legal precedent, there are four tests for whether use of a copyrighted work falls under the “fair use” doctrine that allows use under certain limited circumstances:
- The purpose and character of the use: Whether the work has been significantly “transformed” from its original form, for example when used for research or education, news reporting, criticism or parody.
- The nature of the copyrighted work: Courts tend to give greater protection to “creative works” such as music and fiction than they do to functional works such as personal correspondence or non-fiction.
- The amount of the copyrighted work used.
- The effect of the use on the value of the original work or the potential market for the original work.
In court Tuesday, Grodsky focused his argument on the argument that Von D’s use of the Miles Davis photo was “transformative,” arguing before the jury that there are “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,” as quoted by Rolling Stone.
He added that “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.”
Implications for the music industry
The case could have significant implications for the music industry, which in recent years has increasingly focused on “name and likeness” rights.
A leader in this field in recent years has been Primary Wave, an acquisitive music publisher led by founder and CEO Larry Mestel. The company has acquired name and likeness rights, as part of music rights acquisitions, for Luther Vandross, Prince, Stevie Nicks and others.
“Name and likeness rights are a very big part of our strategy but only to the extent we also own the [associated] music rights,” Mestel told MBW in 2021.
“I think that’s a big difference: [name and likeness rights] are more valuable to us than our competitors because we know how to market those rights and create ancillary opportunities… If you don’t have a machine to exploit those rights, then they really aren’t very useful to a company.”
The major recording companies have also jumped into the name-and-likeness space, for instance Universal Music Group (UMG), when it 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.”
“As a practical matter, most celebrities and animation companies aren’t going to risk alienating their biggest fans by hauling them into court.”
Copyright lawyer Aaron Moss
The issue of name and likeness rights has taken on new urgency in the age of AI, with the proliferation of deepfakes of artists. UMG last summer urged the US Congress to pass a new nationwide “right of publicity” law that would prohibit the unauthorized use of individuals’ likeness and voice in AI-generated content.
A bill aiming to do just that, the No AI FRAUD Act, was recently introduced in the House of Representatives by a bipartisan group of congresspeople.
A ruling that’s favorable to Sedlik in his case against Von D could potentially open the door to corporate rights holders going to court over the use of their IP as tattoos.
However, there’s a large question as to whether these rights holders would want to.
“As a practical matter, most celebrities and animation companies aren’t going to risk alienating their biggest fans by hauling them into court,” copyright lawyer Aaron Moss wrote on his website, CopyrightLately, in 2021.
Bodily autonomy and free expression
Moss also brought up another issue that complicates this case: The fact that the potentially infringing work appears on a person’s body part, which brings up issues of bodily autonomy and freedom of expression.
“Could the photographer seek an injunction asking a court to order the tattoo subject to cover up in public — or even force him to surgically remove the infringing image?” Moss asked.
“And let’s not forget that this guy 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)?”
In a separate post, Moss noted that the Ninth Circuit Court of Appeals, which has jurisdiction over the court hearing the case between Sedlik and Von D, has previously ruled that “the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment.”
The case, Sedlik v. Von Drachenberg, is scheduled to continue this week.Music Business Worldwide