(NewsNation) — A lawsuit filed over a copyrighted image of legendary jazz musician Miles Davis could upend the tattoo industry.
Opening statements were given this week in the civil trial against celebrity tattoo artist Kat Von D, who is being sued by photographer Jeffrey Sedlik, Bloomberg Law reported. Sedlik argues Von D violated copyright laws when she tattooed a version of his iconic portrait of Davis on a client.
Von D’s lawyers contended in court she’s never needed to receive a license for a photo to base a tattoo on because of fair use rules. Under copyright law, copyrighted work can be used without permission from the owner if it is used for purposes such as commentary or criticism, or if the new work “transforms” the reference piece.
At the center of the trial is a 1989 photo of Davis staring into the camera and holding a finger to his lips to depict a “shhh” gesture.
Lawyers for Von D, a former reality TV star who appeared on Miami Ink and LA Ink, told a Los Angeles jury that Von D only used the photo of Davis for inspiration and created a different work of art on a friend’s arm seven years ago, Rolling Stone reported.
“You will see that there are many differences,” Von D’s lawyer Allen B. Grodsky said in court, pointing to differences in the use of lights and shadows, hairstyle and eye shapes. Grodsky also argued his client did not monetize the image in any way.
But on the stand, Sedlik said Von D used the tattoo to promote herself and brand on social media, reaching tens of thousands of people, Rolling Stone reported.
The case stems from a lawsuit brought in 2021 and is thought to be the first to consider whether copyright protections for photos apply to tattoos, according to Bloomberg. A judge ruled in October that in light of a recent Supreme Court ruling, a jury would need to examine whether Von D’s tattoo was a fair use.
That case was Andy Warhol Foundation v. Goldsmith, which last year found that the 2016 publication of an Andy Warhol image of the singer Prince violated photographer Lynn Goldsmith’s copyright.
Justice Sonia Sotomayor wrote in the majority opinion that not every recreated work counts as fair use, and that degrees of change must be balanced against a work’s commercial nature.
Juror’s in Von D’s trial will have to decide whether her tattoo constitutes a fair use re-creation of Sedlik’s image.
