Kat Von D took the witness stand at her copyright infringement trial in California on Wednesday, telling jurors she inked thousands of tattoos from photos and never sought a licensing agreement because she viewed the practice as “fan art.”
The artist, who rose to fame on reality shows “Miami Ink” and “LA Ink,” is being sued for copyright infringement by a photographer who claims she unlawfully reproduced his “iconic” 1989 photo of jazz legend Miles Davis, namely in a design she inked on her friend's arm in 2017 and in various social media posts showcasing the tattoo.
Von D testified as the fourth witness at a trial in federal court in downtown Los Angeles, telling jurors that she stopped charging for tattoos years ago and gave the Miles Davis tattoo to her boyfriend, Blake Farmer given away for free. She said Farmer, a lighting director who worked with her on shoots for her previous cosmetics line, was a big fan of Davis and provided her with a copy of the reference photo she used. She said the low-resolution image did not contain a watermark identifying it as the copyrighted work of plaintiff Jeffrey Sedlik.
Von D insisted she was “never” given a license to use a photo as a reference to create a tattoo. She said she had never heard of any of her colleagues doing that either. “Nobody ever asks for permission,” she testified under oath. She said that in her experience, the photographers who see her tattoos consider it a “compliment” when someone decides to “permanently carve” a version of their work into their skin. Von D said she never considered it copyright infringement.
“They understand that before magazines can use a photo, they must do their due diligence. “You can’t just use one without permission, can you?” asked Sedlik’s attorney Robert Allen.
“Yeah, but I think there's a difference between (a tattoo) and selling a product or a mass-market magazine – selling thousands of units based on someone's artwork,” Von D replied. “I'm tattooing my boyfriend literally his favorite trumpet player because that means a lot to him. I made zero money from it. I don't mass produce anything. I think there is a big difference. It's fan art. I'm looking at this fan art. So I see it differently than when a company takes advantage of an artist. That’s not what I do.”
Allen tried a different approach, inquiring whether Von D would feel as comfortable using a reference book that belonged to one of her colleagues. “Would you copy another artist’s tattoo design?” he asked.
“Sure. “People do that all the time,” she testified. “Like Nicole Richie's rosary on her ankle, Britney Spears' cross on her stomach… Pam Anderson's armband.” These are all iconic celebrity tattoos that are so many people want. They're paying homage. It's fan art. That's tattooing.” Von D said that even if she tried, she could never portray an image perfectly in a tattoo. And she doesn't try, said the tattoo artist: “I do my own interpretation.”
Allen accompanied Von D through a series of posts on her social media accounts promoting commercial ventures, including her cosmetics line, books and shoe designs. Jurors must decide whether Von D's posts about the Davis tattoo, posted on the same social media accounts, were used to burnish her brand and advance her economic interests.
“I don’t see this as advertising,” she said of a September 2022 post about a children’s book she published. “You and I may have different opinions about what we mean by advertising.”
Sedlik was the first witness in the trial, which began Tuesday. He told jurors it took him three years to plan the photo session where he ultimately created the image that was at the center of the dispute. Sedlik said he visited Davis at his Malibu home and built a makeshift photography studio from scratch out of aluminum frames and canvas in the yard. He personally positioned Davis' fingers so that it appeared as if he was making a “shhh” sound, he said.
“I knew he was playing softly to get the audience to lean forward and enjoy every note,” Sedlik told jurors Tuesday about how he made the gesture. He said he also “went in and placed his fingers right in that arc to represent the musical notation,” adding, “I built subliminal things into it.”
Sedlik, a professional photographer and adjunct college professor, said he makes much of his living by licensing his work. He actively defends himself against copyright infringement and contacted Von D after her social media posts caught his attention in 2018, he said. When he received no response, Sedlik said he filed his lawsuit in February 2021.
In her testimony Wednesday, Von D said she only used Sedlik's photo as a starting point. She admitted that she taped it to a light box and made a stencil from it, which she transferred to Farmer's arm for “mapping purposes.” From then on, she did all of the shading “freehand” as she transformed the work into something new, she said.
“I put a lot of textures and movements around it that aren't in the original photo,” she testified, explaining that she also took inspiration from the cover of Davis' 1969 studio album Bitches Brew. “I tried to bring in that from the album cover to bring some of that movement in.” She agreed that the finger placement, pose and perspective of her tattoo mirrored Sedlik's photo, but said her shading added new shadows and highlights. “I did my own interpretation of the lighting. “I’m not a copier,” she joked.
“I think your tattoo work is excellent, but that’s not why we’re here,” Sedlik’s attorney said.
Von D repeatedly referred to Davis' album cover and told jurors that her plan with Farmer was to convert the original portrait into a larger tattoo. “Instead of recreating the hair as it was in the photo, I made my own version where it looked like smoke and negative space. That was supposed to lead to the album cover,” she said on the witness stand.
When Allen again accused Von D of illegally copying the photo, she fought back. “I interpreted and adjusted the photo myself,” she insisted. “The hairline is different because it is my interpretation of telling the story of this artist that meant so much to (Farmer). I used the artwork it was inspired by. Tattooing is also storytelling, just like photography.”
In his complaint, Sedlik said he deserves up to $150,000 in statutory damages as well as legal fees. The jury hearing the case must decide whether Von D's reproduction is protected by 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 into something new, such as a parody, a review, or a news report. The doctrine was the subject of a controversial U.S. Supreme Court decision last year that was largely interpreted as an edict that made it difficult to prove fair use. In that decision, judges ruled that Andy Warhol's painting of superstar musician Prince infringed the copyright of the Lynn Goldsmith photo on which it was based. After the Warhol ruling, the judge now presiding over Sedlik's case allowed Von D's objections and fair use claims to be decided.
Sedlik and his lawyers rested their case on Wednesday. Testimony is expected to continue Thursday, with closing arguments tentatively scheduled for Friday.