Can Tattoos Infringe Copyrights, and If So, What Happens Then?–Sedlik v. Kat Von D

June 2, 2022 · by · in Copyright

Can tattoos infringe copyrights, and if yes, what remedies are appropriate? This is a venerable question–I remember evaluating it as a possible law review note topic 30+ years ago. This opinion is the first I can recall that answers the question squarely, but the most interesting questions get sent to a jury trial. Even so, the court’s almost-banal treatment of this super-interesting topic suggests that there may not be much tattoo exceptionalism in copyright law.

Background

Jeff Sedlik, a photographer, took an iconic photo of jazz legend Miles Davis.

Katherine Von Drachenberg (“Kat Von D”) is a celebrity tattoo artist. She now does her tattoo artistry pro bono. She tattooed the Sedlik photo onto Farmer and promoted the tattoo on social media.

Here is Sedlik’s photo and Kat Von D’s tattoo rendering on Farmer:

Infringement

“Davis’s pose is not separately protectible. However, the selection and arrangement of the elements of the Portrait, including the lighting and camera angle, are protectible.” The court says the photo should get broad, not thin, protection “because there were a great number of choices involved in creating the Portrait, such as Davis’s highly specific pose, facial expression, lighting and shadows, camera angle, and background for the image.” As for whether the tattoo is substantially similar to the copyrighted elements of the photo, the court sends the issue to the jury.

Fair Use

  • Nature of Use.
    • Farmer claimed the tattoo expresses his admiration of Miles Davis, but the court says Farmer’s personal motivations are irrelevant to transformativeness.
    • Farmer also claimed that the tattoo should be considered in the context of his other tattoos, an argument the court unfortunately seems to sidestep.
    • Farmer claimed that tattoos inherently constitute a new expression by virtue of their medium. The court rejects that argument.
    • Farmer also argued that Kat Von D freehanded the tattooing, so she added new expression. The court likes this argument better than the others, saying that “the Tattoo has a purpose or meaning distinct from that of the Portrait by virtue of the way Kat Von D changed its appearance to create what she characterizes as adding movement and a more melancholy aesthetic.” However, was that enough to achieve transformativeness? The court sends the issue to the jury.
    • As for the tattoo’s commercial nature, Farmer didn’t pay for the tattoo and Kat Von D didn’t make any money from doing the tattoo, but Sedlik argued that they “received and enjoyed indirect economic benefit in the form of advertising, promotion, and goodwill by posting photos of the Tattoo on their various social media platforms.” That sends the issue to the jury.
  • Nature of the Work. It’s a creative photo, but it was published. The court doesn’t make it clear which way this factor cut.
  • Amount Used. “Von D presumably did not need to copy the pose from the Portrait in order express a sentiment of melancholy.” Huh? It wasn’t possible to use only a portion of the photo to depict melancholy, so I guess the court is saying Kat Von D should have picked a different image altogether? This factor weighs against fair use.
  • Market Effect. “no one has told [Sedlik] they would not buy a copy of the Portrait because they had seen the Tattoo or social media posts about the Tattoo.” However, Sedlik “believed he licensed the Portrait for use in the making of a tattoo, and that he has been approached several times by tattooists or their clients to request a license to use the Portrait in a tattoo and that he may have rejected at least some of their requests if he did not approve of the quality of their work.” This is another jury issue.
    • The defense argued that a requirement to obtain copyright licenses conflicts with the norms in the tattoo artist community. The court isn’t impressed: “The Court is not convinced that tattooists, unlike other visual artists, should as a matter of law be immune from licensing requirements, or that the procedures of the tattoo industry cannot change to accommodate the time needed to obtain a license if required.”
  • As a fifth factor, the defense argued that fair use should consider the “fundamental rights of bodily integrity and personal expression.” The court says the defense can raise that issue to the jury.

1202

The court rejects the CMI falsification and CMI removal claims for lack of intent.

Remedies

Sedlik didn’t argue that the photo’s value decreased. He also can’t get direct profits because the tattoo was done gratis. However, the court says the jury can decide if the defendants profited from their social media posts.

Implications

Three things stand out about this decision. First, the fact that the tattoo artist didn’t get paid made the case more difficult for the plaintiff. Had the tattoo artist gotten paid for depicting the photo as a tattoo–the far more common situation–I think the plaintiff would have likely won on summary judgment. So this ruling isn’t actually great news for the tattoo artist community. If they are going to be paid for their work, this opinion suggests that they may have to consult copyright counsel and get copyright licenses, whether they want to do so or not.

Second, the court had little interest in exploring the many broad and interesting policy issues about using human skin as a medium for expression of copyrighted works. Instead, this devolves into a straightforward application of copyright law, not materially different than if Kat Von D had painted a version of the photo on canvas.

Third, if the jury finds copyright infringement, ordinarily a permanent injunction would follow. There are good public policy reasons against imposing an injunction on a tattoo, such as the limits of tattoo removal technology. It’s not clear if Sedlik is requesting an injunction, so we may not get any clarity on this difficult remedies issue.

Case Citation: Sedlik v. Von Drachenberg, 2:21-cv-01102-DSF-MRW (C.D. Cal. May 31, 2022)

UPDATE: Kat von D won a jury trial.

Prior Tattoo Copyright Blog Posts