Tattoos in the news - Kat Von D and ‘THE’ lawsuit
Have you read about the lawsuit brought against Celebrity tattooist, Kat Von D? In 2021 a photographer started a law suit against her accusing her of infringing copyright of a photograph he took that she then used as reference for a tattoo. Its all been wrapped up this week with a jury deciding that Kat Von D did not infringe on the photographers copyright.
Sedlik v. Von Drachenberg
The lawsuit was filed by California photographer Jeff Sedlik, who owns the copyright in a photo of legendary jazz musician Miles Davis. Sedlik’s photo was first published as partof a cover story for JAZZIZ magazine in 1989
The principal defendant in Sedlik’s new lawsuit is Katherine Von Drachenberg, better known as Kat Von D. She’s a world-renowned tattoo artist, reality TV star and entrepreneur. Von D quit school at 16 to become a tattoo artist and later appeared for several seasons as the star of TLC’s “L.A. Ink.”
Sedlik alleges in his complaint that Von D infringed the copyright in his Miles Davis photo by tattooing a reproduction of the image onto the skin of one of her clients, and then displaying images of the tattoo online in order to promote her business, High Voltage Tattoo.
Taken from an article at Copyright Lately
The photographer, Jeff Sedlik, claims that Kat used the image without his consent and without a proper license from him. He has also been known for scouring the internet and slamming copyright infringements on anyone that uses his images in any way, infact he waived a ‘license fee’ for another tattooist in exchange for them giving evidence during the Kat von D case.
This debate about freedom of use, intellectual property and copyright comes up frequently in the tattoo world, especially with the popularity of things like Disney tattoos, Portrait photographs for portrait tattoos, band logos or favourite cartoons (I’ve seen a few cute Bluey tattoos, and maybe even a Peppa Pig!) many a chat has been had in a studio where we ponder over the copyright powers that be and if it could ever be an issue. Since the dawn of western tattooing tattooists have copied, replicated and shared images, and yes, we are now mostly custom and design tattoos ourselves, but historically tattooist had the same flash sheets in a lot of studios, or tattooed the same Winnie the Pooh motifs over and over in the hot summer months of the early 2000’s.
Tattooing has historically been an ‘outsider art’ type and therefore we havent really had many brushes with the world of legal copyright, this is really the first big case we’ve seen and one I’ve been watching intently since it was first announced in 2021. Kat created the image in the way that any portrait artist would, by creating a stencil from the photo, and then tattooed it onto the skin of her client. She then shared the photo of the piece on social media and her website to share her work and market her business. This is where the lines get blurred and this is where Sedlik claims he should be paid for his ‘part’ in the creation of the tattoo.
However, in copyright law there is the concept of ‘Derivative work’ - defined as -
a derivative work is an expressive creation that includes major copyrightable elements of a first, previously created original work (the underlying work). The derivative work becomes a second, separate work independent from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright.
A better way to think about this is like this - an artist takes a photo and then a second person prints that exact photo onto a tshirt or mug. That does not fall under derivative copyright, because there is not enough difference in the reproduction, its a direct copy from one canvas type to another. If the second person however redrew or repainted that image from scratch onto a blank canvas, then it could be argued that it is changed enough to be its own work and thus fall under derivative work copyright.
This then technically should apply for tattoos - you couldn’t hypothetically glue a picture of Pikachu to your arm printed straight from a Pokémon card, (that would be silly anyway, it would come off in the shower) but you could take that picture of Pikachu to an artist and ask them to tattoo it on you from scratch, and your artist would create their own interpretation of it as a new piece of art. Theoretically that piece then is not subject to copyright laws.
The Kat Von D v. Jeff Sedlik case has come to a close this week with a jury quickly deciding that Kats’s work was changed enough to not be a direct copy, but Sedlik has said he will appeal the decision, driven by either professional integrity or a nice payout, who can tell! It will definatley be an interesting one to keep an eye on as it could have ripples in the tattoo industry depending on the way the appeal goes, but it would also be very sad if artists were constrained on the types of reference and inspiration photos they were able to use and access. For now we will keep happily creating our own interpretations of your favourite art!