A first-of-its-kind copyright infringement trial began on January 23, 2024 between tattoo artist Katherine Von Drachenberg (“Kat Von D”) and photographer Jeff Sedlik (“Sedlik”). Sedlik accused Kat Von D of copyright infringement of his Miles Davis portrait; the tattoo artist reproduced the photo on the arm of her client. The original Sedlik photo and tattoo are reproduced below:

On January 26, 2024, a jury – after deliberating for less than 3 hours – found in favor of Kat Von D and ruled that she did not infringe on Sedlik’s Miles Davis’ portrait.

For a plaintiff to prevail on a copyright infringement suit, the plaintiff must prove (1) ownership of a valid copyright; and (2) that the defendant copied constituent elements of the work that are original without permission.

There is no question that Sedlik owns a valid copyright. Thus, the question that the jury needed to decide was whether Kat Von D’s tattoo copies protectible elements of the original photo. Kat Von D’s defense to the alleged copyright infringement was fair use – a defense (comprising four factors) that allows for copying of copyrighted material done for a limited and “transformative” purpose. Kat Von D argued – and the jury agreed – that there was a lack of substantial similarity between the photo and the tattoo, that she had no reason to believe that using a photo as a tattoo could constitute copyright infringement, and the fact that she did not charge the client for the tattoo.

Sedlik also claimed that Kat Von D’s social media posts displaying images of the tattoo infringed on his copyright. According to the recent landmark decision in the Andy Warhol case, the jury had to decide not only on whether the tattoo itself fair use, but whether the subsequent social media posts are fair use as well. The jury decided that the tattoo, use of the drawing, and posts all fell within the fair use doctrine.

Luckily, for Kat Von D and tattoo artists around the United States, this win for the tattoo industry allows them to ink with freedom and without needing to think before they ink.