Written by Nhi Pham:
Once stereotyped as a taboo and stigma, tattoos are viewed as intricate artwork that shapes one’s identity. As the tattoo industry booms, questions regarding whether tattoos can be protected by copyright have gone largely unanswered in the law.
Under Section 102 of the Copyright Act, copyright protection begins at the moment of creation for original works of authorship fixed in any medium of expression from which they can be perceived, reproduced, or otherwise communicated. [1] Following this definition, tattoos are copyrightable. However, very few copyright infringement cases around tattoos have gone to trial.
The case of Sedlik v. Von Drachenberg concerns a novel issue to the courts: an allegedly copyrighted image tattooed onto a client’s body.[2] The case is currently undergoing the beginning of its jury trial.[3] Photographer Jeffrey B. Sedlik has brought suit against Kat Von D, a celebrity tattoo artist, for using his “Iconic Miles Davis Portrait” in a tattoo without his permission.[4] Von D asserts her tattoo is fair use of the photograph. Judge Dale Fischer of the US District Court for the Central District of California has partially rejected Von D’s motion for summary judgment, stating that the issue of fair use must be determined by a jury.[5]
Copyright tattoo cases have recently garnered increased attention. In September 2022, a jury rejected the argument that a video game’s depiction of a tattoo artist’s work qualified under fair use.[6] In Alexander v. Take-Two Interactive Software, tattoo artist Catherine Alexander tattooed a few notable pieces on World Wrestling Entertainment wrestler Randy Orton.[7] Take-Two and 2K Games then portrayed these tattoos in their video game WWE 2K without Alexander’s permission.[8] The court ruled that Take-Two’s depiction in the video game did not constitute fair use and infringed on Alexander’s copyright. In contrast, Take-Two and 2K games experienced a similar lawsuit in 2020,[9] regarding tattoos displayed on National Basketball Association (NBA) stars in the game NBA 2k. However, this court ruled differently—the depiction of the NBA players’ tattoos in the video game constituted fair use.[10] Set in the 2nd and 7th Circuits, respectively, these two cases demonstrate that tattoo copyright is a largely gray area of law still in flux. Historically, most copyright issues surrounding tattoos have been artists claiming their copyrighted work was reproduced in movies and video games without permission, infringing their copyrighted art.[11]
Contrasting to these two cases, Sedlik concerns the tattoo artist and the tattoo itself infringing on a copyright. Viva Moffat, a professor at Sturm College of Law, stated that “it’s not that different from other copyright questions or issues that have come up.”[12] At its core, the issue concerns what happens when you take someone else’s copyrighted work and translate it into a different medium for a different purpose.[13] The Supreme Court recently heard arguments regarding copyright infringement for an Andy Warhol print.[14] In this case, the Supreme Court may set a precedent on fair use for all future copyright cases nationally, specifically deciding when a work will be considered transformative enough to not constitute as infringement.[15] In both the Warhol case and Sedlik, a copyrighted photograph of a celebrity is at issue. In both cases, the issue turns on how much of the photograph the photographer owns.[16]
While different circuits have settled copyright issues with various results, Sedlik can have harrowing implications for tattoos. If Von D is held liable for copyright infringement, this can set a precedent that gives copyright owners control tattoo artists and their client’s bodies . Tattoo artists may be prevented from posting their work on social media or begin to refuse work of certain tattoos for fear of being sued for copyright, both of which will affect their livelihoods. Regarding the tattoo client, the copyright owner may be able to seek an injunction to cover up the client’s tattoo in public—or even require them to surgically remove the infringing image. The client could essentially be considered a walking infringement.
With tattoos’ increase in popularity in the past decade, there is no doubt that more tattoo copyright cases will end up at trial. Depending on the outcome of Sedlik, precedent may be set that affects the future of the tattoo industry.
[2] Sedlik v. Drachenberg, No. CV211102DSFMRWX, 2022 WL 2784818 (C.D. Cal. May 31, 2022).
[3] Jeffrey B. Sedlik v. Katherine Von Drachenberg et. al., JUSTICIA (last visited Nov. 29, 2022), https://dockets.justia.com/docket/california/cacdce/2:2021cv01102/809742.
[4] Sedlik 2022 WL 2784818, at *2.
[5] Sedlik 2022 WL 2784818, at *13.
[6] Weintraub Tobin & Scott Hervey, Tattoo Artist Copyright Win Will Create Uncertainty Over Celebrities with Tattoos, JD Supra (Oct. 14, 2022), https://www.jdsupra.com/legalnews/tattoo-artist-copyright-win-will-create-8308386.
[7] Alexander v. Take-Two Interactive Software, 489 F.Supp.3d 812, 817 (S.D. Ill. 2020).
[9] Solid Oak Sketches v. 2K Games, 449 F. Supp. 3d 333 (S.D.N.Y. 2020).
[11] Aaron Moss, Kat Von D Sued for Copyright Infringement over Miles Davis Tattoo, Copyright Lately (Feb. 9, 2021), https://copyrightlately.com/kat-von-d-copyright-infringement-miles-davis-tattoo/.
[12] Riddhi Setty, Miles Davis Photographer’s Suit Against Tattoo Artist Von D to Test Copyright ‘Fair Use’, Bloomberg(June 17, 2022, 10:38 AM), https://www.bloomberg.com/news/articles/2022-06-17/miles-davis-tattoo-suit-pits-copyright-against-body-autonomy.
[14] Blake Brittain, U.S. Supreme Court tackles Andy Warhol Copyright Dispute, Reuters (Oct. 12, 2022), https://www.reuters.com/world/us/us-supreme-court-hears-arguments-andy-warhol-copyright-dispute-2022-10-12/#:~:text=A%20judge%20found%20Warhol’s%20works,reversed%20that%20ruling%20last%20year.
