A photographer who issued a lawsuit against celebrity tattoo artist Kat Von D for using his photo of jazz legend Miles Davis as a tattoo has finally been granted a jury trial. The judge cited the recent U.S. Supreme Court ruling in The Andy Warhol Foundation v. Lynn Goldsmith case in the decision.

Los Angeles-based photographer Jeff Sedlik initiated a lawsuit in 2021 against Kat Von D, accusing her of infringing his copyright by using his iconic 1989 photo of Miles Davis for a tattoo on her friend Blake Farmer.

In November 2022, U.S. District Judge Dale S. Fischer ruled against copyright infringement in the tattoo in a summary judgment decision.

However, Judge Fischer paused Sedlik’s copyright lawsuit to await the U.S. Supreme Court’s anticipated ruling in the Andy Warhol fair use case, which centred on Warhol’s use of photographer Lynn Goldsmith’s photo of Prince.

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Warhol and Fair use

In May this year, the Supreme Court determined that Warhol’s portraits of music icon Prince did not qualify as fair use of Goldsmith’s copyrighted photo. The court found that Warhol’s work served the same commercial purpose as the original image of Prince.

According to Law360, Judge Fischer has now granted Sedlik’s request to reevaluate her prior decision not to find copyright infringement against Kat Von D. She observed that the Supreme Court’s Warhol ruling changed the fair use analysis and that the tattoo of Sedlik’s photograph lacks transformative qualities.

Judge Fischer stated in a 13-page decision, “The court agrees with the parties that there has been a material change in controlling law since the court issued the summary judgment orders. On May 18, 2023, the United States Supreme Court decided Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith… giving lower courts new instructions on how to evaluate the first factor under 17 U.S.C. § 107(1)’s fair use analysis. Warhol changes the court’s analysis.”

Transformative qualities

In light of the Warhol decision, Judge Fischer pointed out that the defendants failed to provide evidence that Von D’s tattoo had transformative characteristics and concluded that a jury should make this determination.

The judge also mentioned that Kat Von D’s social media posts on Facebook and Instagram, documenting the tattooing process, should be examined separately.

The order further states that the issue of fair use concerning the tattoo and related social media posts is more appropriately decided by a jury.

The question of fair use is never black and white. Clearly, in these two cases, the reality is far more complicated and intricate. Fundamentally, it boils down to the question of how much money is being made from another’s work and if they are being compensated for that. I would like to guess that Kat Von D’s tattoos do not come cheaply.

Sedlik apparently reached out to the tattoo artist before filing the lawsuit in a bid to sort things out amicably. Kat Von D reportedly didn’t respond, and things have escalated since. Like the Warhol lawsuit, it could well set another precedent regarding fair use and copyright.

The trial is scheduled to be held on November 28. Watch this space.

[Via Petapixel]