By: Sharon Urias, Esq. and Rachel Kartin*
When well-known tattoo artist Kat Von D used Jeffrey B. Sedlik’s copyrighted image of jazz artist Miles Davis as a basis for a tattoo, she probably never thought about the legal consequences beyond making sure she complied with health and safety codes. But she must now confront the intellectual property implications, as Sedlik has filed a lawsuit against her for copyright infringement, demanding that Von D remove his image from print, digital, and social media, as well as pay profits and additional damages.
Von D, who tattooed the image on a friend for free and therefore did not make any profits directly, argues that she is entitled to the fair use defense. However, Judge Dale Fischer has rejected that argument, ruling the tattoo does not create an inherently different meaning because it is only a change in medium, and thus is not transformative. Think of it like a store selling silkscreened t-shirts with the image on them.
The effects of this case are complex, and may impact more individuals than a typical copyright issue. While most people do not sell pirated copies of Taylor Swift’s new album, they may get her cover art or her copyrighted lyrics tattooed on their bodies. And if this case decides that the tattoo artist is liable for copyright infringement, how many tattoo artists will refuse to tattoo anything except original work? Will Disney decide to sue every tattoo artist that tattoos Mickey Mouse on someone’s arm?
For the jurors tackling this complex question, these issues could become much more personal than any intellectual property infringement case. According to a 2012 Harris Poll,[1] 26% of Los Angeles residents have at least one tattoo, and it is likely that number has greatly swelled in recent years. Jurors may be hesitant to decide that their tattoos make them walking copyright violations.
Additionally, this case may be affected by an upcoming Supreme Court case deciding whether an Andy Warhol print infringes a copyrighted image of Prince, thereby defining when a use is transformative enough to be “fair use.” Any decision here may need to wait until the Warhol opinion is issued.
Because the proud new owner of the tattoo has not been sued and the plaintiff is not requesting the tattoo be removed, the court will not discuss the issue of bodily autonomy. But depending on how this case comes out, those watching may be left wondering if someday a similar situation could result in a court ordering an infringer to pay a pound of flesh.
[1] Los Angeles is America’s “Most Inked Market”, PRNewswire, (Apr. 8, 2014), Los Angeles is America’s “Most Inked Market” (prnewswire.com).
*Not an attorney.