Category - "Enforcement"

Avoiding Warhol: How Celebrity Tattoo Artist Kat Von D Turned Defeat Into Victory in the Central District of California

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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.

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The Ninth Circuit Just Provided a Roadmap On How to Defend California Consumer Fraud Claims

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Companies that may face consumer fraud claims in West Coast courts will want to take a close look at the Ninth Circuit’s decision this month in McGinity v. Procter & Gamble Co., __ F.4th __, 2023 WL 3911531 (9th Cir. June 9, 2023).  The Ninth Circuit provided some much-needed clarity on how lower courts within its jurisdiction should reconcile two seemingly conflicting precedents on how to apply the “reasonable consumer” test to seemingly fanciful claims brought under California’s consumer fraud laws.

Seven years ago, in the pro-defense Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016), the Ninth Circuit upheld the dismissal of claims that the weight indicator on a tube of lip balm was misleading because some of the balm sits in the tube’s screw mechanism and thus is basically unusable.  In the legalese equivalent of “give me a break,” the Ninth Circuit noted California state appellate precedent holding that consumer fraud claims must be dismissed if it is improbable “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” by the challenged practice or language, and called the plaintiff’s lip balm claims “not plausible.”  Id. at 965.  The Ebner decision basically counseled district judges to be on the lookout for, and be ready to dismiss, a plaintiff’s allegations that reflect, at best, the reading “an insignificant and unrepresentative segment” of purchasers might give to a challenged advertisement or language on packaging.  Id. at 966.

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