Tattoo Artist Kat Von D Wins Copyright Lawsuit Over Miles Davis Photo (billboard.com) 46
UnknowingFool writes: Jurors on Friday, January 26, 2024 ruled in favor of celebrity tattoo artist Kat Von D (real name Katherine von Drachenberg) in a copyright lawsuit regarding a photo of Miles Davis in that her use of the photo was not copyright infringement. The photographer of the photo, Jeffrey Sedlik, sued Von D in February 2021 after she used the photo as the basis for a tattoo she inked on a friend. Kat Von D, who gained fame in the reality shows about tattoo artists "LA Ink" and "Miami Ink", put the tattoo on her friend's arm in 2017 as a gift. The jury found that the tattoo was not "substantially similar" to the photo and were also persuaded that the non-commercial nature of the work meant her use of the photo would be fair use.
The plaintiff Sedilk said he is planning to appeal the ruling arguing it contradicts the Supreme Court ruling in Warhol Foundation vs Goldsmith (PDF) where the artist Andy Warhol made a silkscreen print of Lynn Goldsmith's photo of Prince. The main difference pointed out by Von D's lawyers is that Warhol charged $10,000 for his print whereas Von D did not charge her friend for the tattoo and that is was closer to "fan art".
The plaintiff Sedilk said he is planning to appeal the ruling arguing it contradicts the Supreme Court ruling in Warhol Foundation vs Goldsmith (PDF) where the artist Andy Warhol made a silkscreen print of Lynn Goldsmith's photo of Prince. The main difference pointed out by Von D's lawyers is that Warhol charged $10,000 for his print whereas Von D did not charge her friend for the tattoo and that is was closer to "fan art".
Warhol (Score:4, Interesting)
It will be interesting if an appeals court or SCOTUS digs further into the nature of reproduction, here.
I agree that Warhol used the photographers intellectual property. Sure he applied some filters and silk screened it but the 'mechanical' nature in which the work was transformed is quite different some looking at photo and producing a representation by hand, in an entirely different media.
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It will be interesting if an appeals court or SCOTUS digs further into the nature of reproduction, here.
I agree that Warhol used the photographers intellectual property. Sure he applied some filters and silk screened it but the 'mechanical' nature in which the work was transformed is quite different some looking at photo and producing a representation by hand, in an entirely different media.
The case involving Warhol (The Warhol Foundation) was decided in 2023 and is linked in the summary https://www.supremecourt.gov/o... [supremecourt.gov] the scotus is not going to revisit that any time soon.
Do anyone know what compensation the photographer ended up with (if it's been decided or settled)? Guesstimations if I remember correctly was that she would probably end up with a few thousand dollars.
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Warhol's work is transformative and not simply a reproduction. Most important aspect of the transformative use is that Warhol created it for a different purpose and to communicate something different. But SCOTUS has decided that transformative alone is not fair use [copyrightalliance.org].
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Sure he applied some filters and silk screened it but the 'mechanical' nature in which the work was transformed is quite different some looking at photo and producing a representation by hand, in an entirely different media.
I don't think your interpretation would fly, because that would also mean making audiobooks wouldn't require permission from the original author. No, in this case the decision was based on that the reproduction was a one-off that the tattoo artist wasn't compensated for. Like if you made a MP3 copy of a CD from your music collection and gave it to a friend. You've still violated copyright law, but the damage to the rightsholder was minimal.
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Recording yourself reading a book for your own personal use would've been like if this tattoo artist had tattooed themselves. In this case though, the tattoo was put on a 3rd party.
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Recording yourself reading a book for your own personal use would've been like if this tattoo artist had tattooed themselves. In this case though, the tattoo was put on a 3rd party.
Except the four factors of fair use does not center on the distinction of self use vs 3rd party. The first factor weighs more in Kat Von D's favor is a question of commercial vs noncommercial use. For example educational purposes is, most of the time, for 3rd party use.
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I record myself reading a book and play it back to my kids.
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Well, the Dobbs precedent goes strongly the other way.
We need loser pays. (Score:5, Informative)
Re:We need loser pays. (Score:5, Insightful)
That is my thinking here as well.
How many still life's have painting students created from photographs? Does the art school owe the photographers royalties, for each student work?
Warhol reproduced the image by 'technical means' even if there was some creativity in the process. That is very different than making a drawing/painting of a photo by hand.
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I didn't see the video of Kat doing the tattoo, BUT...I do believe in many cases, the artist will make a stencil and apply that to the skin, and basically trace over it.
If that was the case here, it wasn't completely "by hand"...
They may have made a stencil by xeroxing or otherwise copying the picture to the stencil and applying that t
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Re:We need loser pays. (Score:4, Informative)
Photographic law is quite ... interesting.
The photographer probably got a release for the photo, but the copyright of the photo does not belong to the artist, it belongs to the photographer because it was argued the photographer applied creativity when photographing the subject - things like composition and artistic strokes likes lens and aperture choice affect how the image is captured, thus two photographers can take the exact same scene and end up with artistically different outcomes.
It's also why some artists have found themselves on the end of a lawsuit after they post a photo of themselves on Instagram or other social media site that was taken by someone else. The copyright for that photo belonged to the photographer and thus, even though the celebrity was the subject, it was still deemed copyright infringement.
The only thing that was decided here was the tattoo was deemed fair use - which means it is a copyright infringement, however, it fits into an exception to allow for public use. It likely does not mean it's a free for all and someone else getting a tattoo for the same image might find themselves paying penalties.
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The problem with "loser pays" is that it would exacerbate the problem of differing legal budgets. If you're a small artist, and ACME IP MegaPirates Inc. uses your work for commercial purposes without permission, you have to consider whether you can afford to pay the costs of their in-house highly paid legal team in case the court rules against you if you sue.
Yes, it would help discourage frivolous suits, but it was also discourage legitimate ones, and threaten to financially destroy people who tried to pro
Re: We need loser pays. (Score:2)
Not how that works.
1. When it's created, it's copyrighted. Unless it's a work for hire, the copyright belongs to the photographer from the moment the shutter clicks. The photographer can cost to whom he'll licence or sell the rights. Publishing on the Web doesn't change the law, just the difficulty in enforcing it.
2. Rights to publish depends on how it's used. A notable person appearing in public doesn't have to give permission for their photo to appear in the news. A seated portrait, or use of a person's l
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I'm surprised that this is the first time a tattoo has been the subject of a copyright suit like this. I'd have expected Disney to go after people getting their characters tattooed on their bodies first, but maybe their lawyers warned them off it.
The question is - the only interesting question! (Score:4, Funny)
Will the court order the copy destroyed?
will the court pay for that? (Score:2)
will the court pay for that? or force some one to cover the bill?
Chilling effect? (Score:3)
If the artist was not TV famous would this have suit have been brought up?
I can bring a tattoo artist just about any picture I want and generally there's no question of rights even though in that case I am in fact paying them, hell I have a tattoo of a copyrighted Simpsons character, my wife has a tattoo of a Ralph Steadman drawing, could the guy who traced and inked it be liable to the publisher if they so wanted?
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You know, I think we should just be in the habit of adding that disclaimer to anything and everything we say. I am not a lawyer and this is not legal advice.
Re:Chilling effect? (Score:4, Informative)
You know, I think we should just be in the habit of adding that disclaimer to anything and everything we say. I am not a lawyer and this is not legal advice.
"The minimum amount of RAM one should install in a modern PC is 8GB. I am not a lawyer and this is not legal advice."
"The 3.5 V6 Ecoboost engine in the Ford F-150 has an oil capacity of 6 quarts. I am not a lawyer and this is not legal advice."
"When being intimate with your spouse, always be sure to engage in sufficient foreplay. I am not a lawyer and this is not legal advice."
I like it.
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Sorry, I did not know it is his spouse.
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Yeah you are probably correct in a legal sense but even in that case just an image search for "Mickey Mouse tattoo" brings up dozens of examples of obvious copyright theft in that case. Some are definitely creative works, some art straight copies. It's an interesting use case. Could I be liable since i brought the copyrighted source material and secured its reproduction, the artist was just doing what I requested.
I also know copyright is not trademark but tattoo artists have been doing this for decades,
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Yeah you are probably correct in a legal sense but even in that case just an image search for "Mickey Mouse tattoo" brings up dozens of examples of obvious copyright theft in that case.
Also, sports team logos. That is obviously straight up infringement, but no sane sports team would ever legally prosecute a fan over this.
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And another thing about copyright theft.... here is a quote you might find interesting:
Allen emphasized the meticulous work Sedlik did to set up the shoot, to create the lighting and mood, and to put Davis in the pose that would make for an iconic photo that was first published on the cover of JAZZIZ magazine in 1989. Sedlik registered the copyright in 1994.
And he said that subsequently, licensing the image to others including tattoo artists was a major part of how he made his living.
This guy is a rentseeker who had one good day at work and has since then been seeking rent. His children will be getting an income off of it too. As will his grandchildren.
No economy is sustainable in the long run if that's the main activity, and it should be strongly discouraged, not rewarded. The compensation is in no way related to the effort here.
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copyright theft
There is no such thing as copyright theft. You cannot steal copyright (unless we're talking about big companies that pressure artists into signing away their rights) and you cannot steal copyrighted items, at most you can make a copy that you don't pay for.
The whole "theft" thing is a very explicit attempt by the IP industry to frame copyright violations as criminal offenses, where it usually is just a civil matter between two parties.
With everyone that uses the term "theft" I always have to wonder: what's
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It's just common parlance and way easier to say and get the point across than say "infringement"
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Yes. Reproduction of a copyrighted image or trademarked character is illegal.
I don't this that is correct. Obviously, in this case, the court ruled exactly the opposite of what you're saying. There are probably several factors that contribute to a decision on whether what something you did was illegal or not. Some of those are probably 1) did you have artistic input into the end product, 2) did you have any monetary gain from the end product, 3) did you mass produce the end product, and in particular to trademarks 4) can the use of your product be mistaken for/attributes to the o
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You guys are mixing up civil law with criminal law.
It is not illegal to infringe on copyright. It only makes you liable if the copyright holder has a case and brings it to court.
Simpler solution (Score:3)
Find a guy that looks like Miles Davis and say the tattoo is an original work of him. :-)
Re:Find a guy that looks like Miles Davis... (Score:1)
I look like Darth Sidious. For $200 you can use my face to avoid Disney's lawyers.
Substantiatively different (Score:3)
To my thought process, a tattoo is substantiatively different than a screen printing, regardless of the starting point.
Regardless of what you think of Warhol and his other works, screen printing doesn't exactly require a particular degree of skill or artistic talent.
Tattoo artistry, on the other hand, is HARD. Even if the artist is simply tracing a skin overlay, it's still (every time) unique and distinct art, additive and derivative from the original. There is a significant amount of artistry involved, and no 2 tattoo artists will be able to do the same "picture" the same justice.
It's really no different than someone using a photo as a source for any other sort of art that you're doing yourself. It's fully a "derivative work", every time.
As others have said, this was just a frivolous rent seeking lawsuit.
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And a "derived work" falls under copyright law.
The difference is by hand vs. by machine (Score:3)
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Now, if you want another example of, "not a copyright violation", the movie, "Dances with Wolves", and compare that to Avatar....very very similar story, just different characters, different setting, but Avatar wasn't an amazingly new story.
That's because Avatar isn't Dances with Wolves, it's Pocahontas in space.
Excellent! I was very close to (Score:1)
...having to give my ass to Disney because it has Natalie Portman on it, twice.