IP Law Daily, COPYRIGHT—C.D. Cal.: Jury finds no infringement of iconic Miles Davis photo by tattoo artist, (Jan 30, 2024)

By Brian Craig, J.D.

The jury found no substantial similarity and that posts on social media constituted fair use.

In a copyright infringement case brought by a photographer against celebrity tattoo artist Kat Von D over a photo of celebrated jazz musician Miles Davis, a jury in Los Angeles, California has concluded that the tattoo artist did not violate copyright law. In the unanimous verdict, the eight-person jury in the downtown Los Angeles courthouse for the federal district court found no substantial similarity between the tattoo and the photo of the iconic jazz musician. In a case that may have far reaching implications, the jury also found that posts by the tattoo artist on social media constituted fair use (Sedlik v. Von Drachenberg , January 26, 2024, Fischer, D.).

Celebrity photographer Jeff Sedlick, known for his portraits of jazz and blue performers, owns the copyright for a 1989 black and white photo of jazz musician Davis, shown striking a contemplative pose at his beach house in Malibu with Davis raising his index finger to his mouth in shush gesture. The photographer sued celebrity tattoo artist Katherine Von Drachenberg, also known as Kat Von D to her fans, who has a special expertise in creating black and gray portrait tattoos. Over two sessions in 2017, the artist inked a tattoo of Davis on the skin of a lighting technician with whom she had once worked on a film project. The tattoo artist’s social media sites included the photo in the background as the tattoo artist worked on the tattoo. The finished tattoo, based on the Sedlik photograph, was posted to the social media accounts of both the tattoo artist and her studio. The photographer sued the tattoo artist claiming copyright infringement as well as violation of the Digital Millennium Copyright Act, or DMCA. In May 2022, the court denied cross motions for summary judgment concluding that a jury would need to decide questions about substantial similarity and fair use on the copyright infringement claims. Although the court left most issues to the jury, the court ruled in favor of the tattoo artist on the DMCA claim and granted summary judgment. Following the week-long trial and after deliberating a few hours with clear instructions, the jury rejected the photographer’s copyright infringement claims.

Substantial similarity. The jury found that the tattoo and other related works are not substantially similar to the Davis photograph. The jury verdict form specifically included the tattoo, a sketch, social media posts, and an Instagram story as alleged infringing works. The jury unanimously decided that the photographer failed to show by a preponderance of the evidence that any of the works created by the tattoo artist or her studio are substantially similar to the photo.

Fair use. The jury also found that the tattoo artist demonstrated by a preponderance of the evidence that certain works constituted fair use. The jury members concluded that posts of the tattoo artist working on the tattoo on her social media sites and the final tattoo on social media posts constituted fair use. Accordingly, the jury sided with the tattoo artist in finding no infringement.

The Case is No. 2:21-cv-01102-DSF-MRW.

Attorneys: Gary S. Sedlik (Sedlikgroup, PC) for Jeffrey B. Sedlik. Allen B. Grodsky (Grodsky Olecki and Puritsky LLP) for Katherine Von Drachenberg.

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