Nancy Dillon
Celebrity tattoo artist Kat Von D won a resounding victory Friday at the copyright infringement trial over the Miles Davis tattoo she inked on a friend free of charge seven years ago.
Jurors took less than three hours to unanimously decide her tattoo – as well as her planning sketch and four related social media posts – were not “substantially similar” to the copyrighted 1989 portrait of jazz legend Miles Davis at the center of the trial. The eight jurors also found that three other social media posts made to Von D’s personal and business accounts that also referenced the photo qualified as “fair use.”
“I’m extremely happy and grateful and very thankful,” Von D told Rolling Stone as she left the federal courthouse in downtown Los Angeles with her dad, who accompanied her to the four-day trial.
“It’s been two years of a nightmare, worrying about the outcome. Not just for me but for all my fellow tattooers and all the people who have been fans of people they’ve gotten tattooed,” Von D told reporters after the verdict. “I knew that if we didn’t fight this that I just think it would have done so much harm to an industry that has struggled for so long to do good things and be a good example of art in this world.”
Plaintiff Jeffrey Sedlik, a professional photographer and adjunct college professor, filed the lawsuit in February 2021. In his testimony, he described how he spent three years planning the photo session with Davis and even built a makeshift photo studio on the beach outside Davis’ home in Malibu to make sure his final photograph would be perfect. He described how he chose the wardrobe, hairstyle, pose, angle, lens and aperture and even personally positioned Davis’ fingers so the revered trumpet player would look like he was making a “shhh” sound.
“I knew he played quietly to get audiences to lean in and relish every note,” Sedlik told jurors Tuesday, explaining how he arrived at the gesture. “I went in and placed his fingers exactly in that arc to represent musical notation. I was building subliminal things in.”
Sedlik had asked the jurors to award him $42,750 in actual damages and up to $150,000 in statutory damages for willful infringement. Sedlik’s lawyer said his side planned to appeal.
In closing arguments Friday, Sedlik’s lawyer Robert Allen said his client was a perfectionist who painstakingly created works of art and made his living licensing them. He said with the Davis portrait, “every single decision that was made was precise.” He argued that Von D’s tattoo was “substantially similar” to the photo in terms of the “unnatural” hand placement, the overall pose, the “furrowed brow,” the lighting and “the direction of his gaze.” He said the case was about fairness and compensating artists for their work. “Plagiarists don’t get a free ride by adding additional things to things that they’ve already taken,” he told the jurors.
“This is not going to have any effect on the tattoo industry. Nobody with a tattoo has to worry that the tattoo police is going to come after them,” Allen added. “That’s not what this case is about. This case is about permission and respecting art.”
But Von D’s lawyer Allen Grodsky disagreed. He said artists can’t copyright a camera angle or a gesture, and in the case of Von D’s tattoo, she never tried to reproduce it for profit. “This case is very important to my client,” Grodsky said in his closing. “It’s important to the tattoo industry, and it’s important to people who want to get tattoos.” He said Von D never sought licenses for the reference photos she used for countless tattoos, and it was never a problem.
“We’re here because my client, Kat Von D, would not bow down to Mr. Sedlik. She wouldn’t tell him how wise he was and how she appreciated his advice. She acted on behalf of tattoo artists everywhere and stood up to him,” he said. Grodsky repeatedly reminded jurors that the tattoo was a gift for Von D’s friend, Blake Farmer, a lighting director who testified during the trial that he was a trumpet player himself and big Davis fan.
Grodsky argued that Von D never sold a reproduction of her tattoo as a print, poster or t-shirt, and when she posted about it “a handful of times on her Instagram and Facebook accounts, she wasn’t promoting anything commercial.” After the verdict, Grodsky told reporters the lawsuit never should have been filed.
At least one expert who followed the trial agreed with that assessment. “To the extent that Jeff Sedlik wanted to establish a precedent, he may have chosen to sue the wrong defendant in as much as Kat Von D did this tattoo for free. And she was very personable, which likely affected the jury,” lawyer and intellectual property lawyer Matthew Neco tells Rolling Stone.
“I likely would have found substantial similarity in the tattoo, however, there’s a very good chance I would have found fair use, and therefore no infringement and no damages,” Neco says.
Four jurors spoke to Rolling Stone as they left the courthouse, saying they carefully reviewed their instructions but reached agreement quickly. “It just seemed really obvious. The verdict was easy,” one woman said. “One tattoo on a person’s skin is not like selling a painting.”
Another juror, also a woman, said she admired Von D: “She stood her ground. We felt proud of her for taking this fight on.”
