The intersection of tattoo artistry and copyright law is a complex and often uncharted territory. A recent case, Sedlik v. Von D, brings this issue sharply into focus, centering around a tattoo of jazz legend Miles Davis. This lawsuit, filed by photographer Jeffrey B. Sedlik against celebrity tattoo artist Kat Von D, is poised to potentially redefine the legal landscape for tattoo artists and those who choose to get inked with copyrighted imagery.
The case revolves around a striking Miles Davis Tattoo created by Kat Von D, based on Sedlik’s copyrighted 1989 photograph. Sedlik claims copyright infringement, arguing that the tattoo is an unauthorized derivative work. Von D, known for her appearances on reality TV shows like Miami Ink and LA Ink, and her popular Los Angeles tattoo studio, High Voltage, maintains that her use falls under fair use. This legal battle is groundbreaking, as it’s believed to be the first case where a tattoo artist is being sued for copyright infringement based on a tattoo on a client’s body.
Jeffrey B. Sedlik's photo of Miles Davis. Photo courtesy of court filings.
The Genesis of the Miles Davis Tattoo Lawsuit
In March 2017, Kat Von D shared on Instagram the first in a series of posts showcasing a tattoo she had created. The subject was none other than the iconic Miles Davis, depicted in a pose instantly recognizable from Jeffrey B. Sedlik’s photograph: finger to his lips, a portrait of cool intensity. This photograph, originally featured on the cover of Jazziz magazine and later in Life magazine’s prestigious “Pictures of the Year” issue, is undeniably Sedlik’s intellectual property.
Years later, in 2021, Sedlik initiated legal action, arguing that Von D’s Miles Davis tattoo and its subsequent social media promotion infringed upon his copyright. The core of the dispute lies in whether creating a tattoo based on a copyrighted photograph constitutes copyright infringement, and whether posting images of that tattoo online further exacerbates the infringement.
Judge Dale S. Fischer, after reviewing filings from both sides, decided that the case warrants a jury trial. The jury will be tasked with determining two critical points: whether the Miles Davis tattoo qualifies as fair use of Sedlik’s photograph, and whether Von D’s actions deprived Sedlik of potential licensing revenue.
Fair Use vs. Copyright Infringement: The Core Legal Battle
The concept of “fair use” is central to this legal drama. Fair use, in copyright law, allows for the use of copyrighted material without permission under certain circumstances, such as criticism, commentary, news reporting, teaching, scholarship, or research. Von D’s defense hinges on arguing that her tattoo is a transformative work and thus falls under fair use.
Her legal team argues that Von D’s interpretation of Sedlik’s photograph is indeed transformative. They point to artistic choices she made in the tattoo, such as adding “waves of smoke” around Miles Davis’s hair and hand, creating a “sentiment of melancholy,” and altering the background. They contend that these modifications differentiate the tattoo from the original photograph, imbuing it with a new artistic expression.
However, Judge Fischer seemed less convinced by some of Von D’s other arguments, such as the idea that merely transferring a photograph onto skin is inherently transformative, or that the client’s personal motivations for getting the Miles Davis tattoo alter the copyright implications.
Kat Von D's Miles Davis tattoo, as shared on her Instagram. Screenshot from court filing.
Implications for Tattoo Artists and Clients
The outcome of Sedlik v. Von D has significant ramifications for the tattoo industry and individuals who get tattoos. Copyright experts like Amelia Brankov highlight the potential precedent-setting nature of this case. If the court finds in favor of Sedlik, it could establish that tattooing a copyrighted image is indeed an act of copyright infringement.
This could lead to a situation where tattoo artists might be held liable for copyright infringement when they create tattoos based on existing imagery. Furthermore, as Von D’s lawyers argued in court filings, such a ruling could potentially expose tattooed individuals to liability whenever they publicly display tattoos based on copyrighted material, including through social media.
The established practice within the tattoo industry, as mentioned in court, has often been to not seek licenses for source material. However, Judge Fischer noted that this industry practice does not necessarily equate to legal compliance. This case could force a shift in how tattoo artists operate, potentially requiring them to obtain licenses for copyrighted images they wish to replicate in their art.
The Warhol Foundation Case and the Broader Copyright Landscape
The Sedlik v. Von D case is unfolding against the backdrop of another high-profile copyright battle: the lawsuit against the Andy Warhol Foundation, which has reached the U.S. Supreme Court. This case also grapples with the fair use doctrine, specifically concerning Andy Warhol’s silkscreens of Prince, based on a photograph by Lynn Goldsmith (for whom Jeffrey Sedlik is an expert witness).
The Warhol case, and its eventual ruling, could significantly influence the Miles Davis tattoo case. Both cases raise fundamental questions about the boundaries of fair use and derivative works in art. As Brankov noted, the core legal questions are similar: are the works “substantially similar,” and if so, does the secondary work constitute fair use of the original, negating the need for a license?
While the legal intricacies are debated, one thing seems clear: it is highly unlikely that Blake Farmer, the recipient of the Miles Davis tattoo, would be compelled to undergo tattoo removal even if Von D is found liable. The idea of forcing someone to remove a tattoo as a remedy for copyright infringement is considered “remote to inconceivable.”
The Future of Miles Davis Tattoos and Copyright
The Sedlik v. Von D case is more than just a legal dispute; it is a reflection of the evolving relationship between art, technology, and intellectual property in the digital age. As tattoos become increasingly mainstream and social media amplifies the reach of visual content, the legal framework surrounding copyright and tattoo art needs to adapt.
Whether you are considering getting a Miles Davis tattoo, are a tattoo artist, or simply interested in the intersection of art and law, this case is one to watch. It will not only determine the fate of Kat Von D in this particular lawsuit but could also shape the future of copyright law as it applies to the dynamic and increasingly visible world of tattoo art. The case serves as a crucial reminder of the importance of understanding copyright and intellectual property rights in all forms of creative expression, including the art that adorns our bodies.
