Miles Davis Photographer's Go well with In opposition to Tattoo Artist Von D to Take a look at Copyright 'Fair Use'

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Celebrity tattoo artist Kat Von D’s use of a well-known {photograph} of jazz nice Miles Davis has led to what’s believed to be the primary lawsuit over whether or not a picture’s copyright safety extends to tattoos, pitting questions on creative freedom and physique autonomy in opposition to photographers’ rights to personal their creations.

Photographer Jeffrey B. Sedlik is suing Von D, who used his “Iconic Miles Davis Portrait” in a tattoo she inked on a colleague. Sedlik shot the {photograph} round 1989, and it has appeared in publications world wide, together with Life journal’s annual “Pictures of the Year” subject.

The case is on the highway to trial, after a California federal choose not too long ago stated a jury should resolve disputes that embody whether or not the picture falls underneath the “fair use” doctrine—a copyright infringement protection that the US Supreme Court will deal with this fall in a case involving Andy Warhol’s print of a photograph of the musician Prince.

“It is, as far as I know, the first case in which a tattoo artist has been sued for an allegedly copyrighted image on a tattoo on a client’s body,” stated Aaron Moss, an legal professional at Greenberg Glusker Fields Claman & Machtinger LLP.

Its final result may assist outline the bounds of copyright truthful use and the chance of chilling the expression of tattoo artists and others hoping to create work based mostly on copyrighted photos, attorneys say.

Fair Use

Von D, whose full identify is Katherine Von Drachenberg, has appeared on actuality reveals reminiscent of “Miami Ink” and “LA Ink” and owns a tattoo firm referred to as High Voltage.

She inked a tattoo of Miles Davis on Blake Farmer, a lighting technician with whom Von D labored on a movie challenge. Farmer offered Sedlik’s picture as a reference, which Von D used to create the tattoo, freed from cost.

Sedlik’s lawsuit requested the court docket to require Von D and her firm to take away any content material incorporating the portrait from print and net publications, in addition to social media accounts. He additionally requested all of Von D’s earnings from the infringement, and extra damages.

Von D argues that the tattoo is a good use of the {photograph} underneath the Copyright Act, pointing to the dearth of economic revenue from the tattoo, amongst different issues. Attorneys for Von D didn’t reply to a request for remark.

Judge Dale Fischer of the US District Court for the Central District of California in late May partially rejected Von D’s argument that her work tattooing the {photograph} was transformative, ruling that the tattoo doesn’t create an inherently totally different which means simply by being positioned on the human physique.

She left the broader truthful use query for a jury, which may even resolve how a lot Von D profited from social media posts that includes the tattoo, regardless that she wasn’t paid for the work itself.

Bodily Autonomy

The choose didn’t handle Von D’s extra novel argument that “fundamental rights of bodily integrity and personal expression” additionally weigh in favor of discovering truthful use. Though not among the many 4 elements spelled out within the statute, courts and juries can contemplate different elements, the court docket wrote. Moss agreed.

“You do have to weigh the rights of the interest that the copyright owner has to control the public display of his work, against the right to privacy and bodily autonomy that the individual that has the tattoo has,” he stated. “The problem with that, I guess, is that would give kind of free rein for any tattoo artists to use copyrighted images, for free and without impunity.”

Farmer, the recipient of the Miles Davis tattoo, isn’t a defendant within the case. If he had been and Sedlik sought an injunction, it will be “a very different case,” Moss stated.

“The idea that you would force somebody to have a tattoo removed, I think, is fundamentally at odds with the right to bodily autonomy that’s protected in the Constitution,” he stated.

Viva Moffat, a professor at Sturm College of Law, stated it will be arduous for Von D to make the bodily integrity argument stick as a result of “it’s not her body that’s at issue.”

As far because the medium and canvas are involved, “it’s not that different from other copyright questions or issues that have come up,” Moffat stated. For her, the core of the case is the query of what occurs whenever you take somebody’s copyrighted {photograph} and translate it to a distinct medium for a distinct objective.

All Eyes on Andy Warhol

That subject is already on faucet on the Supreme Court, which in October will hear oral argument on whether or not an Andy Warhol print—commissioned by Vanity Fair for an article and later utilized by the artist for a number of further works—infringes a copyrighted picture of Prince.

The excessive court docket may set precedent on truthful use—significantly on the query of when a piece is reworked sufficient to keep away from copyright infringement—and have an effect on Sedlik’s case in opposition to Von D. Sedlik is an skilled witness within the Warhol case, based on court docket information. He declined to remark.

Attorneys say that although the jury is about to listen to the tattoo case in September, the trial or ultimate resolution may be delayed till the Supreme Court weighs in on the Warhol case.

“My first thought is that’s going to have a very big impact on this,” stated Yvette Liebesman, a professor at Saint Louis University School of Law. She stated that in each circumstances, to create the Warhol print or the tattoo, “you have to start with a photograph of that person.” And in each circumstances, the query boils all the way down to “How much does the photographer own?”

Tough Questions for the Jury

The jury will wrestle to grapple with the complexity of the tattoo case, particularly mixed with the looming Warhol resolution and disagreement on the boundaries of truthful use even amongst judges, Moss stated. “How’s the jury supposed to figure this out?”

He stated he’d have an interest to see jury choice, positing that jurors with tattoos may ask themselves, “Wow, what are the implications of this fight? If I find that the copyright’s been infringed, am I essentially a walking infringement myself?”

Other attorneys pointed to the necessity for the choose to present the jury clear directions on coping with the truthful use evaluation and bodily integrity claims. Some say this case may have troubling penalties on tattoo artists, who might concern being sued for creating tattoos referencing copyrighted photos.

“Even the lawsuit itself, even without an outcome, could have a chilling effect,” Moffat stated. “But certainly, an outcome where the tattoo artist is held liable for copyright infringement, I have to imagine that that will have a chilling effect for a tattoo artist, and possibly more broadly.”

Copyright 2022 Bloomberg.


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