Under Your Skin; Kat Von D and the Future of Copyright Law and Unlicensed Works in Tattoos

by Parker Herren, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

In 2017, Katherine von Drachenberg (“Kat Von D”) posted a photo to her Instagram displaying a tattoo she had recently done for her friend Blake.¹ The tattoo was a reproduction of a photograph taken by Jeffrey Sedlik, depicting famous jazz musician Miles Davis.² In response, Sedlik filed suit in 2021 alleging copyright infringement.³

This article explores the future of copyright in the tattoo industry, particularly relating to the doctrine of fair use and derivative works. Part II provides background on what material may be copyrighted, what constitutes copyright infringement, and the doctrine of fair use. Part III discusses how the ruling in Sedlik v. Drachenberg has the potential to undermine the court’s fair use analysis. Finally, Part IV concludes by stating that the Court in Sedlik v. Drachenberg incorrectly ruled that Von D’s tattoo was protected under the defense of fair use.

II. Background

A. What Can Be Copyrighted?

Article I, Section 8, Clause 8 of the Constitution states that “Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”⁴ This clause provides the basis for both federal copyright protection and federal patent protection in the U.S.⁵ The Copyright Act of 1976 provides the basic framework for copyright law in America today.⁶ Section 102(a) of the Copyright Act states that copyright protection subsists “in original works of authorship fixed in any tangible medium of expression.”⁷ Notably, works of authorship under the Copyright Act include “pictorial, graphic, and sculptural works.”⁸ In Burrow-Giles Lithographic Co. v. Sarony, the Court reiterated the copyrightability of photographs, noting that photographs meet the minimum threshold of creativity through creative liberties in the selection, posing, and lighting of photographs.⁹

B. What Is Copyright Infringement?

For a plaintiff to succeed on a claim of copyright infringement, they must prove two elements: (1) that they had valid ownership of a copyright; and (2) the defendant copied original expression from the copyrighted work.¹⁰ However, the Copyright Act lists several defenses to copyright infringement.¹¹ Most notably, as asserted in the case against Kat Von D, the doctrine of fair use can allow for an individual to use a copyrighted work without infringing.¹² Pursuant to §107,

[i]n determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of commercial nature or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.¹³

These factors are not exclusive, and some courts have interpreted the meaning of each of these factors differently.¹⁴

In Campbell v. Acuff Rose Music, Inc., the Court found that the commercial nature of a parody is not dispositive to a fair use analysis.¹⁵ The Court noted that because a parody needs to mimic the original work to make its point, it qualifies as having a transformative use.¹⁶ Additionally, citing to Harper & Row, Publishers, Inc., v. Nation Enterprises, the Court stated that the effect on the potential market is “undoubtedly the single most important element of fair use.”¹⁷ The Court also notes that the lower court was remiss in failing to emphasize that every commercial use of a copyrighted work is presumptively unfair.¹⁸

Nearly thirty years later, the Supreme Court decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.¹⁹ In Andy Warhol, the Court considered whether the fair use defense applied to a series of derivative works based on a photograph of the artist Prince taken by the Respondent, Goldsmith.²⁰ In their analysis, the Court relied on the four factors of the fair use analysis.²¹ Ultimately, the Court held that the purpose and character of the petitioners use of the respondents photograph did not favor a fair use defense.²² Specifically, the Court relied on their holding in Campbell, and found that “if an original work and secondary use share the same or highly similar purposes, the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying.”²³ The holding in Andy Warhol suggests that merely making a copyrighted work into a new aesthetic form is not transformative, and thus does not qualify for a fair use defense.²⁴

C. What Is Derivative Work?

A derivative work is a work based upon “one or more preexisting works.”²⁵ Common examples of derivative works include translations, musical arrangements, dramatizations, fictionalizations, motion pictures, and sound recordings.²⁶ To create a derivative work, the person must either be the owner of the copyright or be granted permission from the owner of the copyright.²⁷ Work that is in the public domain does not need a license or permission to be used in the creation of a derivative work.²⁸ If an author creates an unauthorized adaptation of a copyrighted work, they may be held liable for copyright infringement.²⁹

The line between a derivative and transformative fair use work is sometimes blurred.³⁰ Past Supreme Court decisions appear to improperly conflate works that are transformative as being fair use and not an infringement of copyright.³¹ Specifically, the ruling in Campbell appeared to suggest that as long a work is transformative in some sense it may escape liability from a copyright infringement claim.³² However, the Court’s ruling in Andy Warhol appears to suggest that the future of fair use defense cases may begin to stray away from relying on the aspect of transformative use.³³

D. Jeffrey Sedlik’s Lawsuit

In 1989, Jeffrey Sedlik captured a portrait photograph of renowned jazz musician Miles Davis.³⁴ The picture of Davis appeared on the cover of JAZZIZ magazine and depicted Davis looking straight into the camera with a single finger on his lips.³⁵ Almost forty years later, celebrity tattoo and makeup artist Kat Von D posted a photo of her on Instagram tattooing her friend Blake.³⁶ This photograph, shown below as Figure 1, was shared to her nearly ten million followers, and showed Kat Von D tattooing the picture of Miles Davis on her friend.³⁷

Figure 1³⁸

Notably, in the background of the photograph, Sedlik’s photo can be seen taped to the wall.³⁹ This image would then go on to be shared on Von D’s personal Facebook page, and the Instagram page of her tattoo shop.⁴⁰

Upon discovery of the tattoo, Sedlik filed suit in 2021, claiming several violations of the Copyright Act of 1976.⁴¹ His lawyer, Robert Allen, alleges that Von D’s use of his work was not fair use under the meaning of the Copyright Act.⁴² Von D’s lawyers based their arguments on public policy concerns, stating that this ruling “would destroy the market for licensing original work.”⁴³ Additionally, Allen reasons that while Von D did not receive commission for the tattoo, she profited from the images she posted from social media, amounting to commercial use.⁴⁴

Ultimately, the jury found for Von D, holding that the tattoo of Miles Davis was not substantially similar to the photo it was based on.⁴⁵ Allen disagreed with the ruling, telling reporters that “[Sedlik’s photo and Von D’s tattoo] are so strikingly similar. And if those two are not substantially similar, then no one’s visual art is safe.”⁴⁶ But Von D may not rest easy, as grounds for appeal of this decision seem highly likely.⁴⁷

III. Discussion

A. Von D’s Tattoo Is a Derivative Work of Sedlik’s Photograph

There is no doubt that Von D has met the requirements for a prima facie case of copyright infringement. Sedlik owned a valid copyright in his photograph, Von D copied Sedlik’s photo in creation of the photograph (as evidenced by the photo hanging in her Instagram picture), and she improperly created a derivative work.

As Sedlik’s lawyer aptly points out, there are potentially dangerous consequences following this ruling.⁴⁸ As shown in Von D’s Instagram post, Von D used a printed out copy of Sedlik’s photograph as reference for her tattoo.⁴⁹ Any ordinary person can see the glaring similarities between the two works. The Copyright Act of 1976 prohibits the unlicensed use of a copyrighted work to create derivative works.⁵⁰ A derivative work is a work created based on an existing copyrighted work.⁵¹ Based on this definition, Von D’s tattoo of Miles Davis would qualify as a derivative work of Sedlik’s photograph.

Derivative works created without permission from the author of the original copyrighted work are subject to copyright infringement claims.⁵² As suggested in Andy Warhol, simply transporting a work onto a different medium does not qualify as a transformative use worthy of a fair use defense against copyright infringement.⁵³ Similar to the petitioner in Andy Warhol, Von D provided no transformational elements in her reproduction of the Miles Davis portrait. Looking at the images side by side, it is clear that Von D was aiming to replicate Sedlik’s photograph, and she merely transported the work onto a different medium. Transporting a copyrighted work onto a different medium is not substantial enough to escape a claim of copyright infringement, as suggested in Andy Warhol.⁵⁴ Thus, Von D has created an improper derivative work of Sedlik’s photograph.

The ruling in Sedlik demonstrates a lack of consistency within the courts. Specifically, the courts appear to neglect to adhere to the offense of copyright infringement for derivative works.⁵⁵ Courts instead generally rely on the “transformative” aspect of a work in their finding of a fair use defense, despite the word “transformative” being absent from the statute.⁵⁶ This has led to courts usually favoring a finding of fair use in copyright infringement cases.⁵⁷ This is demonstrated in the case at issue. Neglecting to address potential derivative work infringements leaves copyright owners vulnerable, and the Court must act now to protect their rights.

B. Potential Public Policy Implications

Von D’s lawyers present an additional argument that the outcome of this case could have potentially damaging consequences for the tattoo industry.⁵⁸ They claim that an outcome favoring copyright infringement could result in tattoo artists being more cautious about the work they accept and make it more difficult for people to get tattooed.⁵⁹ This argument is unpersuasive. Just as an individual may not sell drawings identical to another’s copyrighted work, a tattoo artist may not sell their unlicensed drawings of another’s copyrighted work. Although the mediums differ, the same principles apply. Refusing to acknowledge the similarities between the art forms absent their medium goes against the purpose of copyright protection.

IV. Conclusion

The case of Sedlik v. Drachenberg is far from over. An appeal is brewing, and it could have potentially damaging consequences for owners of copyrighted works in the U.S. The courts need to adhere to the Copyright Act of 1976, applying stricter copyright protections. Without strong copyright protection in works, copyright owners are vulnerable to people claiming fair use to their unlicensed use of their works. While fair use is a valid defense to copyright infringement, courts have been lax in their application in recent years. The holding in Andy Warhol appears to suggest the Court may begin to take a new approach, applying stricter copyright protection to infringement claims for derivative works. Sedlik has the potential to be a monumental follow up to Andy Warhol, solidifying the Court’s direction in strengthening copyright protection against unlicensed derivative works. The future of copyright law and the protection against unlicensed derivative works lies in the hands of the Court. It is imperative that the Court uses the opportunity presented in Sedlik to further solidify the ruling in Andy Warhol and extend stronger protections to copyright owners.

Cover Photo by Andrew Leu on Unsplash

Parker Herren

References

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4
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8
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