LOS ANGELES (CN) — Celebrity tattoo artist Kat Von D prevailed in the copyright infringement trial over her unlicensed use of a photo of Miles Davis for the tattoo she inked on the arm of a friend.
The jury in downtown LA on Friday took only a few hours to reject the claims by photographer Jeff Sedlik. He sued Von D because she hadn't approached him for a license to use the photo he took in 1989 of the jazz legend raising his index finger to his lips in a "shush" gesture.
Jurors concluded that the tattoo wasn't substantially similar to the original photograph and that any social media posts that showed Sedlik's photo in the background of Kat Von D working on the tattoo was fair use.
Robert Allen, Sedlik's attorney, said the verdict seemed a hurried decision and that they would appeal.
"The question of substantial similarity should never have gone before the jury," Allen said. "That should have been decided as a matter of law."
Sedlik had sought about $45,000 in compensatory damages for willful infringement, for the tattoo and social media posts by the artist showing her work on the tattoo, or $150,000 in statutory damages.
Allen said the case was never about money but about protection the rights of all visual artists. If the tattoo wasn't found to be substantially similar to Sedlik's photo, he said, than no intellectual property rights of visible artists were safe.
Katherine Von Drachenberg, who goes by Kat Von D, rose to fame through her appearances on the reality TV shows Miami Ink and LA Ink, the latter of which was shot at her High Voltage Tattoo shop in Hollywood. Now a stay-at-home mom, Von D testified on Wednesday that she hasn't charged anyone for a tattoo in over a decade and only has done work for friends for free.
"I'm excited to be done," Von D said after the verdict. "If we didn't fight this, it would have done so much harm to an industry that's already struggling."
The Miles Davis tattoo had been a gift to Von D's friend Blake Farmer, a lighting technician who worked on some shoots for her makeup business in 2017. After talking with Farmer, who plays trumpet himself, and learning how important Miles Davis was to him, she offered to create a tattoo of the musician.
Von D told the jurors that no one in the tattoo world gets a licenses to use a photograph as a reference for their creations. She maintained her use of the Miles Davis was "fair use" because it was her interpretation of the image and served an entirely different purpose than Sedlik's work.
Farmer provided Von D with the photo that became the subject of the copyright lawsuit. Sedlik, however, turned out to be a stickler when it comes to unlicensed use of his work; he regularly scans the internet to find infringers. He testified how in 2014 he tracked down another tattoo artist who had posted on social media a tattoo he had done based on the same Miles Davis photo.
That artist got away with a free retroactive license after Sedlik contacted him and agreed to waive a $5,000 licensing fee as a "professional courtesy" because, he testified, the artist apologized and showed contrition for not seeking a license beforehand.
Von D said after the verdict that she may never create another tattoo again because her heart had been crushed by the ordeal. She added that she might make an exception for Farmer, who testified at the trial, because the lawsuit had tainted his Miles Davis tattoo.
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