A first-of-its-kind lawsuit has been brought against famed tattoo artist Kat Von D. The suit could have wide-ranging ramifications for all tattoo artists and tattoo-bearers in a landmark copyright infringement case.
Kat Von D sued in case that could change the future of tattooing
Can a tattoo be too photorealistic? So real, in fact, that it infringes on the copyright for the photo used as reference? But isn’t a tattoo a separate work of art, in a different medium, worthy of its own copyright?
The above and more are all the questions at stake in a landmark lawsuit that is believed to be the first of its kind, Unilad reports.
Photographer Jeffrey Sedlik has bought a lawsuit alleging copyright violation and infringement of his intellectual property rights against renowned tattoo artist Kat Von D, whose legal name is Katherine Von Drachenberg. The photographer claims that a tattoo Kat inked in 2017 based on his photograph of American jazz legend Miles Davis infringes on his photograph.
An example of the original photo can be seen on this Miles Davis Art Poster Print by Jeff Sedlik at Amazon.
Although Kat was not paid for the tattoo, she later shared a photo of the tattoo on her Instagram, which can still be seen here at Artnet.
Court will allow lawsuit to proceed
The central argument in the case is that the tattoo is so photorealistic, that it makes Kat’s work substantially similar to his photo. So much in fact, that it constitutes copyright infringement of his original work.
The lawsuit was filed in 2021 and now a federal California judge in California has ruled that the case can be brought to trial. The judge issued a 30-page order largely denying both parties’ motions for summary judgment, finding there were triable issues on substantial similarity and fair use, the website copyright lately reports. The court says this matter is now for a jury to decide.
What this lawsuit could mean for tattoo artists and tattoos
The ramifications of the lawsuit affect not only tattoo artists but those who get tattoos. In fact, it could be devastating to the entire tattoo industry. If the court were to decide this was indeed copyright infringement, it could mean that copyright holders could sue both artists and the people they tattoo.
For example, someone could be sued for having a popular cartoon character or logo inked on their skin. The list of possibilities goes on and on. In essence, it would force all tattoo work to be wholly original.
Copyright and fair use
Copyright law can be confusing, and questions of “fair use” often fall into a legal gray area.
In the case of this specific tattoo, it’s not as simple as saying the work is new because it is now on someone’s skin and has a different border around it.
One of the standard factors the law examines is “the purpose and character of the use,” which is where consideration is given to whether the new work is “transformative.” This is typically defined as whether the new work adds “new expression, meaning or message” in a manner that makes it sufficiently transformed from the original.
Von D’s attorneys argue artists and tattoo bearers risk lawsuits
“Holding tattoo artists civilly liable for copyright infringement will necessarily expose the clients of these artists to the same civil liability anytime they choose to get tattoos based on copyrighted source material, display their tattooed bodies in public, or share social media posts of their tattoos,” attorneys for Von D wrote in a filing. “That is not the law and cannot be the law.”
