By Alexandra Materia
Tattoos place another wrinkle into the realm of copyright law and their interaction with the fair use defense. Famously in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith Justice Kagan passionately dissented from her majority justices to argue that Warhol's use of the Prince photograph was not fair use because “[i]t will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge.”[1] This dissent serves as not only a warning, but it also places artists in potential conflict due to industry and community norms. Even though community norms are not directly dictated by the law, the tattoo industry has relevant and important norms to note, especially considering the recently decided Sedlik v. Drachenberg case.
Who and What Events Lead to this Copyright Infringement Case?
A photograph of Miles Davis, captured by Jeff Sedlik (“Sedlik”), was used as a reference image when Katherine Von Drachenberg's (“Kat Von D”) close friend came to her and asked for a tattoo. Sedlik sued Kat Von D for not only producing a tattoo based on his image free of charge but for posting her work on social media.[2] The photograph of Miles Davis (“Davis”) features him touching one of his fingers to his lips, making the “shhh” gesture. Kat Von D stated that the tattoo produced for her friend was “completely different” than the original photo of this jazz icon captured by Sedlik.[3] Currently, Kat Von D has almost 10 million Instagram followers, and her career highlights include being featured on multiple television series about tattoos, creating and launching a makeup brand, writing a children's book, starting a shoe line, and most recently, releasing an album.[4] At the time the alleged copyright infringement took place, Kat Von D posted to her multiple social media platforms an image of her working on the tattoo in question for her friend. On Instagram alone, the post has almost 86,000 likes and remains on her page as of (March 13, 2024).[5] Sedlik’s lawyers argued that when Kat Von D posted the image to her social media platforms, she promoted her own brand through the use of Sedlik’s copyrighted photo.
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