Tattoos are a form of self-expression and a visible assertion of body autonomy. Many people seek certain tattoos for their relevance and connection to important pop-culture moments, like a celebrity portrait, character or inside joke from a TV show. However, this concept may create trouble for tattoo artists who, in the process of fulfilling their client’s wishes, end up appropriating well-known works of art.
Most recently, photographer Jeffrey B. Sedlik has sued famous tattoo artist Kat Von D after she tattooed Sedlik’s portrait of Miles Davis on a former colleague’s body. Sedlik’s photograph, shot around 1989, was well-known and highlighted in magazines. Sedlik wants Von D to remove any content relating to the photograph and also wants the profits from her alleged infringement, along with additional damages.
This suit may be the first lawsuit determining whether tattoos fall under the scope of U.S. copyright law. This critical question explores body autonomy and creators’ rights.
The underlying issue here is whether the use of Sedlik’s image is “fair use.” Fair use is a carve-out for what would otherwise be copyright infringement under Section 107 of the Copyright Act. Fair use supports freedom of expression and permits (in particular circumstances) copyrighted works to be used in new works without authorization. The fair use analysis involves a four-factor test to determine whether the user infringed on the copyrighted work or whether the use is acceptable. There are four factors found under 17 U.S.C. §107:
(1) the purpose and character of the use, such as whether the use is of a commercial nature or for a nonprofit educational purpose;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Many cases turn on the court’s interpretation of the first factor in particular, the purpose and character of the use. This factor looks at whether the new work has a transformative purpose and result, such as a parody, symbolism or critique of the original work.
Von D has claimed that the circumstances of the tattoo tip the scale in favor of fair use for several reasons. She argues that:
(1) her appropriation is considered fair use because she tattooed this image free of charge (rather than of a “commercial nature”);
(2) her work is transformative; and
(3) according to memos filed with the court, there are “bodily integrity and personal expression” rights at play.
Judge Dale Fisher for the US District Court for the Central District of California ruled that the tattoo is not transformative solely because it is on a body; the new work needs to “transform” the original work. The remaining question for the jury is whether Von D’s use is otherwise considered fair use.
What will the jury decide? It’s impossible to know how they will apply the four-factor test, but based on past fair use cases, the fair use defense might not be a home run for Kat Von D.
Starting with the first factor, the purpose and character of the use is likely more commercial than anything else. While Von D’s colleague did not pay for the tattoo, Von D is a celebrity tattoo artist who allegedly posted the tattoo on her social media account. With over 8 million followers, she could have potentially gained more customers, ad deals or other lucrative connections. However, it will likely be difficult for the jury to determine whether an indirect benefit is strong enough to satisfy this factor.
In terms of whether her work is transformative, Judge Fisher has already answered this in part. Just because the work is on a body, rather than another medium, does not make it transformative. While Von D argued that the wearer’s personal expression creates a completely new meaning for the work, the judge ruled that transformativeness does not take into account the subjective state of mind. It will be up to the jury to decide whether Von D’s rendition of the work is enough to create new meaning.
Moving on to the second prong, the nature of the copyrighted work, Sedlik’s photograph is likely creative expression, which weighs in favor of Sedlik. If this was more factual in nature, like a newspaper article, this factor would more likely weigh in favor of Von D.
The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, will also likely weigh in Sedlik’s favor. It appears that a large portion of the photograph was used for the tattoo. While the entire black background of the photograph may not have been used, the predominant component, Miles Davis’s portrait, was used.
Lastly, for the fourth prong, the jury may likely find that the unauthorized use of Sedlik’s photo deprived him of benefiting from the actual or potential market for the photo. He could have been paid for the use of his photograph if someone wanted to use it in its true form. This could also set a broad fair use precedent for tattoo art if photographers and other creators cannot benefit from the usage of their work in tattooed renditions.
The decision lies with the jury, but right now the fair use defense doesn’t appear to be a particularly strong one for Kat Von D.
However, Von D brought up a “fifth factor” for the court to consider: the right of “bodily integrity and personal expression.” This situation is unique because it involves the artist and a living canvas, the person receiving the tattoo. Whereas most other appropriation art cases involve the artist and a nonliving medium, this case raises a new query altogether: whether her former colleague who received the tattoo is also potentially liable. If so, not only is the tattoo artist placed in the copyright hot seat, but their client is as well. Von D argued that if tattoo artists are liable, then their clients, who bear the tattoos, will also be liable any time they choose to show their bodies displaying the copyrighted work. She seemed to imply that this could lead to the chilling of the tattoo industry and the personal expression that goes along with it.
While body autonomy and creative freedom are essential, protection for original creators cannot be ignored. Personal expression can still give credit where credit is due. Tattoo artists should do their due diligence when creating their tattoos to make sure that they are not infringing on any copyrights, as would any other artist, photographer or fashion designer.
All artists, including those whose medium is tattoos, can benefit from experienced legal representation to discuss all options available when creating something new to minimize or avoid liability.