A copyright infringement dispute now pending in a California federal court is raising interesting questions about how copyright applies to tattoo art—as well as some familiar questions about transformative use of photographs. 
 
Background
 
The plaintiff in the case is professional photographer Jeffrey Sedlik, who created a 1989 photograph of jazz legend Miles Davis.  He owns the copyright and in the past has granted limited licenses to third parties who wished to use it for various purposes.  The defendant is Katherine Von Drachtenberg (who goes by the moniker Kat Von D), a famed tattoo artist and reality television celebrity; two of her affiliated companies were also named in the suit.  In 2017, an acquaintance, Blake Farmer, sent Kat Von D the Sedlik photograph to use as a reference for his tattoo.  She created a line drawing using the outlines and contours of the photograph, transferred that drawing to Farmer’s skin, and inked the tattoo.  She and her tattoo parlor posted photographs of her in the process of making the tattoo, with a printout of the Sedlik photograph in the background as a reference.
 
Sedlik sued for copyright infringement in early 2021.  (C.D. Cal. Docket No. 21-cv-1102.)  Following discovery (including expert discovery), both sides moved this spring for summary judgment; Sedlik sought judgment on his infringement claim, while the defendants sought a ruling that their use of the photograph was protected by the fair use doctrine.  A few weeks ago, the Court largely denied both sides’ motions.
 
Summary Judgment Ruling
 
The Court assumed, for purposes of the motion, that Sedlik adequately identified elements in the tattoo that were sufficiently similar to the photo.  Instead, the Court focused on whether the similar elements were protected by copyright, or unprotectible.  This is a complex analysis when it comes to photographs, because of course, many artists can depict the same subject; for example, Davis’s pose is not protectible, but the “selection and arrangement” of elements like lighting and camera angle are protectible.  The Court noted several differences, including the light and shading on Davis’s face, as well as the background, that made for a triable issue of substantial similarity.  Likewise, the Court concluded that a “reasonable juror” could conclude that the works did not have a substantially similar “total concept and feel.”
 
Having denied Sedlik’s motion, the Court moved on to the defendants’ fair use defense, examining the four factors laid out in federal copyright law.  The defendants argued that the tattoo had a “transformative” purpose because the image gained a new meaning that was personal to Farmer—but the court was unpersuaded, noting that there was no legal support for the argument “that a work has a different meaning for the purpose of the fair use analysis simply because an individual who commissions a copy of the original attaches some different personal significance to it.”  The Court also rejected the notion that tattoos are inherently transformative simply because their “canvas” is a human body.  Finally, the defendants “identified visual differences between the Portrait and the Tattoo resulting from Kat Von D’s techniques in inking the tattoo,” and urged that those differences made the tattoo transformative because Kat Von D had added her own interpretation to the original image.  But Sedlik countered that any differences in Kat Von D’s rendering of the image were simply a result of her copying it onto a three-dimensional surface.  The Court opted to leave this issue to a jury. 
 
As for the commercial nature of the tattoo, the Court noted that Farmer had not paid any money for the tattoo—but held that there was still a question of fact as to the commercial nature of the tattoo because the defendants had received indirect economic benefit from it by posting images of it on social media.  
 
The Court’s analysis also discusses the effect on the market for the photograph, citing testimony that Sedlik has licensed the photo for several different purposes, and has been approached for licenses to use it in tattoos.  And while the defendants had presented expert testimony explaining that tattoo artists often use copyrighted material as references and that seeking a license is not common in the industry and would stifle tattoo artists’ creativity, the Court rejected the idea that tattoo artists should be immune from any obligation to license copyrighted art.
 
Interestingly, the defendants had also proposed that the Court consider an additional factor: “fundamental rights of bodily integrity and personal expression.”  The Court acknowledged that fair use law expressly contemplates that the four factors listed in the statute are not exclusive, and that it could take such additional considerations into account.  But ultimately the Court ruled that, because there were other triable issues as to the statutory factors, the overall fair use question should go to a jury. 
 
The Court ruled in the defendants’ favor on a handful of more peripheral issues (dismissing claims against one related corporate entity and rejecting Sedlik’s claims regarding copyright management information). 
 
What’s New Here—and What Sounds Very Familiar
 
Copyright law takes on a unique spin when applied to tattoo art, by virtue of the fact that the artist’s medium is a person’s body.  We have written before about cases where a tattoo artist has sued to try to protect their artwork from infringement, raising novel questions such as whether tattoo artists give their clients an implied license with respect to the artwork.  In this case, however, the tattoo artist is not the plaintiff but the defendant—Kat Von D used Sedlik’s photo as a reference for her own tattoo art, and now seeks to argue that she did not need to seek permission from or compensate Sedlik due to fair use.  The Court, on summary judgment, was plainly reluctant to treat tattoos as occupying some special status that protects all tattoo artists from copyright liability.  But it did leave room for the possibility that there may be unique considerations when the purportedly infringing material is a tattoo; for example, how should the fair use analysis account for the fact that tattoos are, for many people, a form of highly personal expression that is literally incorporated into their bodies?  The Court showed little appetite for exploring such issues in depth at this point in the case.  And some commentators have noted that, where Farmer (the bearer of the tattoo) is not in the case, those arguments are less forceful; Sedlik is not seeking relief from Farmer, and Kat Von D is not in the best position to assert Farmer’s right of bodily integrity.
 
This case also could bring about some changes, or at least self-reflection and self-regulation, in the tattoo industry; for example, if Kat Von D is ultimately held liable for infringement, it may make tattoo artists more reluctant to risk copyright liability by inking a tattoo based on a third party’s copyrighted work without either a license from the creator or an indemnification from the client.  The risk is only heightened by the increased power of social media, where a tattoo artist or client’s social media presence can widely publicize a tattoo that might, in a less-digital era, have remained a relatively private statement.  Indeed, as this case illustrates, the value of such publicity may be a possible basis for damages in a situation that otherwise involves little to no money.  (Interestingly, Kat Von D did not charge Farmer for this tattoo and apparently mostly plies her trade pro bono; that is not generally the case for many other tattoo artists.)
 
Ink aside though, there are elements of this case that sound awfully familiar in light of the high-profile Warhol/Goldsmith case headed for the Supreme Court next term.  That case (see here and here for details) also involves a photographer whose portrait of a celebrity was used as a reference by a celebrity artist.  In the Goldsmith case, a federal district court had granted summary judgment for the Warhol Foundation on the fair use question, but that was later reversed by the Second Circuit.  Many of the same fair use questions resonate in both cases: How should courts analyze the “purpose” of an artwork?  How can we meaningfully draw a line between fair use and infringement when an artwork is recognizably derived from an original photograph but the purported infringer has at least arguably added his or her own perspective? 
 
The Sedlik dispute is pending in California and is thus not bound by the Second Circuit’s opinions in Warhol.  But at least one commentator has suggested that the judge in the Sedlik case may have opted for a “wait and see” approach rather than deciding this case as a matter of law on summary judgment, where such a ruling might later be called into question when the Supreme Court issues an opinion in the Warhol case.
 
A trial of Sedlik’s claims is set for September, and we will continue to watch the case with interest.