Jury Sides With Kat Von D in Copyright Infringement Lawsuit Involving Miles Davis Tattoo [Repost of Sarah Stemer's Article Featured In Trademark Lawyer Magazine ]

(This article was Originally Published February 15, 2024 in The Trademark Lawyer Magazine online newsletter.)

A Los Angeles jury has sided with tattoo artist Kat von D (Drachenberg) in a copyright infringement lawsuit filed by photographer Jeffrey Sedlik. 

The high-profile case centered around an image that the reality TV star inked onto a friend’s arm, based heavily on Sedlik’s photograph of Miles Davis. Now one of the most famous photographs of the late jazz musician, Sedlik’s shadowy portrait of Davis with his finger over his mouth “shushing” the viewer, was first published in JAZZIZ Magazine in 1989. 

Sedlik, an artist’s rights advocate and intellectual property consultant, filed his action against Drachenberg in a California District Court in 2021 seeking roughly 45,000 USD in compensatory damages or 150,000 USD in statutory damages, for copying protectable elements of his photograph and using images of the tattoo on her social media account.

Whether Sedlik’s image is covered by copyright was not in dispute, instead, the case hinged on whether Drachenberg’s use of the photograph fell under the Fair Use exception. Fair Use, a common and robust defense to copyright infringement, is most often seen in cases of commentary, criticism, and parody of an original work. In determining whether Fair Use applies, courts look to several factors, including how similar the original and copied works are, how the work was used, and how the use of the work impacted its value. Drachenberg claimed that the Fair Use defense applied, because the tattoo was not “substantially similar” to Sedlik’s photograph, and she tattooed her friend for free.

Sedlik’s position was that even though the tattoo was a favor for a friend, Drachenberg’s various social media posts of the tattoo were commercial in nature because they were intended to promote her tattoo services. Sedlick argued that Drachenberg’s use of the image without a license disrupted his ability to sell licenses to other tattoo artists, which he has done in the past. 

Sedlik took the stand and explained that each element of the photograph, including the lighting, background, and pose was meticulously planned and arranged by him. By tattooing the image onto her friend’s arm – even though the image was slightly altered – Drachenberg still infringed on Sedlik’s rights. 

Drachenberg testified that tattoo artists do not get licenses for tattooing photographs. Her attorney later added that she had to stand up for tattoo artists by fighting this case while Sedlik’s attorney assured the jury that this case was not about stifling the tattoo industry but about requesting permission and respecting art.

After less than three hours of deliberation, the jury sided with Drachenberg and found that the tattoo was not “substantially similar” to the portrait and that her use was not for a commercial purpose. In response to the verdict, Sedlik’s attorney said that “no one’s visual art is safe,” while Drachenberg is calling it a victory for the tattoo industry.

Ultimately, whether Fair Use applies remains a case-specific question. While the ruling from this jury was that this very tattoo was not “substantially similar” to the original image, the result does little to protect future tattoo artists from the opposite ruling with a different tattoo.

The fight between Sedlik and Drachenberg, seemingly having adopted the cause of their respective industries, is not quite done. Sedlik’s attorney believes the issue of “substantial similarity” is not a fact that should have been decided by a jury but instead is a matter of law to be decided by a judge. They plan to appeal that very issue.

The New York Times Sues the Maker of ChatGTP and Microsoft for Copyright Infringement

On December 27, 2023, the New York Times filed a lawsuit in the Southern District of New York for federal copyright infringement against both OpenAI, maker of ChatGTP, as well as Microsoft, an investor of ChatGTP and creator of their own artificial intelligence platform. The lawsuit alleges that the companies’ AI chatbots have been using The Times’ copyrighted material in their automatic collection of internet data (scraping) to produce content, as well as to train the AI language models. The parties had been negotiating a settlement, but that fell through.

Microsoft and OpenAI have previously claimed that their use of the copyrighted material is Fair Use. Fair Use is a common defense to copyright infringement, which contends, generally, that the copyrighted material is transformed into a new work, by changing its purpose. A typical example of fair use is a parody or educational use.

Preempting that Defense, The Times pointed out in its complaint that “there is nothing 'transformative' about using The Times's content without payment to create products that substitute for The Times and steal audiences away from it.”

The newspaper estimates that their damages are in the billions.

Elon Musk and the Farting Unicorn

In February 2017, Elon Musk took to social media with a photograph of a mug designed by Colorado potter, Tom Edwards. Mr. Musk tweeted that the mug, which features a unicorn farting electricity, might be his “favorite mug ever.” Naturally, the Tweet caused a boost in sales of the mug.

Not long after his initial post, the Tesla founder followed-up with another Tweet of a strikingly similar farting unicorn design. This time, the image had been drawn on a Tesla sketch pad, which the post was intended to promote. By the end of the year, the electric car company had incorporated the image as an icon into Tesla’s operating system and even featured it in their company holiday cards.

At no point in all of this did Mr. Edwards provide permission, or receive compensation, for the use of his art. When Mr. Edwards (and his daughter) publicly expressed disappointment, Mr. Musk responded by tweeting, “he can sue for money if he wants, but that’s kinda lame. If anything, this attention increased his mug sales.”

Mr. Edwards did ultimately hire an attorney. He explained that it was more about standing up for artists in general than recouping funds for himself. Despite Mr. Musk’s open flippancy, he eventually reached an agreement with Mr. Edwards.

This “misunderstanding” (Mr. Edward’s words) brings up two points worth addressing.

First, this example really shows how “cut and dry” copyright infringement can be. Even though sales of Mr. Edwards mug increased with the attention garnered by Mr. Musk and Tesla’s infringements, they were still infringements.

Second, this is a good example of a local artist struggling to hang onto their intellectual property. Protecting IP is proving especially difficult in the internet age. Often, after promoting their work on social media or selling it on sites such as Etsy.com, they find larger companies taking their art and mass producing it. The idea of taking on one of these companies in court and incurring exorbitant legal costs can seem daunting. Luckily, many IP attorneys are creating fee arrangements where, rather than charging hourly, they will only get paid if the artist does. Plus, most of these cases settle. In fact, a lot of the time, all it takes it a Cease and Desist letter and a couple of phone calls between the attorneys to bring it to a close. If you ever find yourself in this unfortunate position, keep this in mind.

A photograph of Mr. Potter’s mug.