When celebrity tattoo artist Katherine Von Drachenberg (better known as Kat Von D) tattooed a portrait of Miles Davis on her friend Blake Farmer’s arm as a gift, she used a reference photo created by professional photographer Jeffrey Sedlik to guide her work. This tattoo—which Von D did not charge for—would set off a two-year legal battle that culminated in a jury trial in the Central District of California in early 2024. Sedlik claimed that Von D’s tattoo infringed his copyright in the photo and pointed to shared elements such as hand placement, overall pose, similar furrowed brows, similar lighting, and the direction of Miles Davis’s gaze. Von D, for her part, spent the majority of the litigation arguing that the tattoo was transformative and protected by the doctrine of fair use.
And it seemed that Von D was well on her way to being able to plead her case to a jury. The district court found that Von D had sufficiently shown that the tattoo could have a purpose or meaning distinct from that of the photo “by virtue of the way [Von D] changed its appearance to create what she characterizes as adding movement and a more melancholy aesthetic.” Thus, it denied Sedlik’s motion for summary judgment on the transformative nature of the tattoo and Von D was poised to argue the issue to a California jury.
But shortly after the district court made its ruling, the Supreme Court issued its ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258 (2023). Warhol involved an orange silkscreen portrait of the artist Prince that was derivative of a photograph owned by Lynn Goldsmith. Warhol’s estate argued that the silkscreen was transformative because it imbued Goldsmith’s photo with new meanings and messages. The Supreme Court disagreed and held that the proper way to determine the transformative nature of the work is not a formal analysis of the work’s aesthetic character. Instead, the question of a work’s transformative nature “considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use.” Id. at 1277. Von D’s original argument—which relied solely on an evaluation of the aesthetic (melancholic) and the medium (flesh) of her work—was foreclosed by Warhol and the district court granted summary judgment to Sedlik on the issue of the transformative nature of Von D’s tattoo.
But Von D ultimately prevailed at trial. How? By avoiding the question of fair use altogether. Von D’s strategy seemed to be to lean into the aesthetic analysis of the image she tattooed on Blake Farmer’s arm and—instead of focusing on fair use—focus on one of the more fundamental issues of the case: was her tattoo substantially similar to Sedlik’s photograph? After several days of trial and testimony from expert witnesses, a California jury ultimately held that it was not. As a result, the jury did not consider the question of fair use at all and found in favor of Von D.
Though victorious (for now—Sedlik has indicated an appeal is forthcoming), Von D’s legal issues put an exclamation point on the need for artists to be cautious when creating unauthorized derivative works based on reference materials they do not own. Von D escaped liability in this instance but this verdict should not be read as a universal green light when it comes to the tattoo (or any) industry in which a third-party work is being reproduced (in whole or in part) with additional aesthetic flourishes. It was enough for Von D in this particular instance and for now, but a proper fair use analysis remains essential to assessing risk prior to going forward with the public display or sale of any such images.
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