Nancy Dillon
Famed tattoo artist Kat Von D appeared in a federal courtroom in Los Angeles on Tuesday to defend herself against allegations that she took jazz legend Miles Davis' “iconic” portrait by a photographer and tattooed it on a friend without proper attribution or compensation.
The former star of reality shows “Miami Ink” and “LA Ink” sat before a jury as her attorney said in his opening statement that Von D had only used the famous photo as “inspiration” because she was a “completely different” person. I created the work on her friend's arm seven years ago.
The 1989 photo at the center of the trial, created by plaintiff Jeffrey Sedlik, shows jazz legend Miles Davis staring directly into the camera lens while holding a finger to his lips, which Sedlik described Tuesday as “shhh.” designated gesture. It was first published on the cover of JAZZIZ magazine in August 1989 and was registered with the United States Copyright Office in 1994.
“You'll see there are a lot of differences,” Von D's attorney, Allen B. Grodsky, told jurors as he laid out her defense. He pointed out “differences in the position and shape of the shadows, differences in the use of light, differences in hairstyle, differences in the shape and representation of the eyes.” He said Von D's tattoo had no jacket and no black background. “Kat Von D's rendition of Miles Davis had a more melancholy mood than Mr. Sedlik's,” her attorney argued. “And you will see that it has a movement that is not found in him. Kat Von D did not attempt to monetize the tattoo in any way. She didn't take photos of prints she sold. She didn't sell t-shirts or mugs. She did not sell products in any way.”
Sedlik took the witness stand first and spent more than an hour going over his credentials. The professional photographer and college professor described testifying before Congress about artists' rights and founding a nonprofit organization focused on international licensing standards. He said it took him three years to plan the photograph of Davis, drawing sketches and consulting with the trumpet master himself.
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“I knew he was playing softly to get the audience to lean in and enjoy every note,” Sedlik testified, explaining how he came up with the “shhh” gesture. “I went in and placed his fingers right in that arc to represent musical notation. I incorporated subliminal things.”
Sedlik first filed his lawsuit three years ago, alleging that Von D illegally reproduced his copyrighted photo and used it to promote her brand through social media posts on Instagram, Facebook and YouTube, which have received more than 100,000 across all platforms received likes. The lawsuit includes links to various social media posts that show Von D working on the tattoo on her boyfriend Blake Farmer's arm nearly seven years ago. A March 18, 2017 post (still active on Von D's account as of Tuesday) shows her applying ink to Farmer's arm while a printed copy of Sedlik's photo is taped to the wall next to her.
“I can't believe I get to tattoo a portrait of #MilesDavis for the first time!” her captions read. “Thanks, Blake, for letting me tattoo you!” According to Sedlik, the post shows Von D “trying to accurately recreate every aspect of the iconic Miles Davis portrait in the form of a tattoo.”
The jury now hearing the case must decide whether Von D's reproduction falls under the “fair use” doctrine, which allows limited use of copyrighted material without permission. Artistic representations of copyrighted works may be protected by fair use if they “transform” the work in question into something new, such as a parody, a review, or a news report.
In his testimony Tuesday, Sedlik said he was actively defending the copyright of his Davis photo, including in relation to tattoos. In 2014, when he saw an earlier image of a tattoo that resembled his photo, he reached out to the person and received a “respectful” response, he testified. The man removed the image from social media and apologized, prompting Sedlik to retroactively issue him a license without money to cover the previous incident, he said. Sedlik viewed it as an “educational opportunity,” he said.
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With Von D, the former reality TV star claims that the tattoo she created is “transformative” enough to be considered fair use.
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Courts have been arguing over the question of fair use for decades. Its use was the subject of a U.S. Supreme Court decision last year that was largely interpreted as an edict making it difficult to prove fair use. In the 2023 case, judges ruled that Andy Warhol's painting of superstar musician Prince infringed the copyright of the Lynn Goldsmith photo on which it was based. The decision allowed Goldsmith's lawsuit against Warhol's estate to continue. After the Warhol ruling, the judge now presiding over Sedlik's case allowed the photographer's lawsuit to proceed over Von D's objections and fair use claims.
The case is scheduled to resume on Wednesday. Von D is expected to testify.