Celebrity tattoo artist Kat Von D appeared in a Los Angeles federal courtroom Tuesday to fight claims she used a photographer’s “iconic” portrait of jazz legend Miles Davis and tattooed it on a friend without proper credit or compensation.
The former star of reality shows Miami Ink and LA Ink sat before a jury as her lawyer alleged in his opening statement that Von D only used the famous photo for “inspiration” as she created a “completely different” work applied to her friend’s arm free of charge seven years ago.
The 1989 photo at the center of the trial, created by plaintiff Jeffrey Sedlik, depicts jazz legend Miles Davis staring directly into the camera lens while holding a finger to his lips in what Sedlik described Tuesday as a “shhh” gesture. It was first published on the cover of JAZZIZ magazine in August 1989 and registered with the United States Copyright Office in 1994.
“You will see that there are many differences,” Von D’s lawyer Allen B. Grodsky told the jurors as he laid out her defense. He pointed to “differences in the position and shape of shadows, difference in the use of light, difference in the hairstyle, differences in the shape and rendering of the eyes.” He said Von D’s tattoo had no jacket and no black background. “Kat Von D’s interpretation of Miles Davis had a sentiment that was more melancholy than Mr. Sedlik’s,” her attorney argued. “And you’ll see that it has movement that’s not found in his. Kat Von D did not attempt to monetize the tattoo in any way. She did not make photos of prints that she sold. She didn’t sell tee shirts or mugs. She didn’t sell products in any way.”
Sedlik took the witness stand first, spending more than an hour walking through his credentials. The professional photographer and college professor described testifying before Congress about artists’ rights and founding a non-profit focused on international licensing standards. He said he took three years to plan the photograph of Davis, drawing sketches and consulting with the trumpet master himself.
“I knew he played quietly to get audiences to lean in and relish every note,” Sedlik testified, explaining how he landed on the “shhh” gesture. “I went in and placed his fingers exactly in that arc to represent musical notation. I was building subliminal things in.”
Sedlik first filed his lawsuit three years ago, alleging Von D illegally reproduced his copyrighted photo and used it to promote her brand through social media posts on Instagram, Facebook, and YouTube that garnered more than 100,000 likes across the platforms. The lawsuit includes links to various social media posts showing Von D working on the tattoo on her friend Blake Farmer’s arm nearly seven years ago. One post dated March 18, 2017, (that was still active on Von D’s account Tuesday) shows her applying ink to Farmer’s arm with a printed copy of Sedlik’s photo affixed to a wall beside her.
“Can’t believe this is first time I’ve gotten to tattoo a portrait of #MilesDavis!,” her captions reads. “Thank you, Blake for letting me tattoo you!” According to Sedlik, the post depicts Von D “attempting to precisely replicate every aspect of the Iconic Miles Davis portrait in the form of a tattoo.”
Jurors now hearing the case will have to decide whether Von D’s reproduction falls under the “fair use” doctrine that allows limited use of copyrighted material without permission. Artistic representations of copyrighted work can be protected by fair use if they “transform” the subject work into something new, such as a parody, critique, or news report.
In his testimony Tuesday, Sedlik said he actively defends the copyright for his Davis photo, even in terms of tattoos. When he saw a previous image of a tattoo resembling his photo back in 2014, he reached out to the individual and received a “respectful” reply, he testified. The man removed the image from social media and apologized, leading Sedlik to grant him a retroactive license for no money to cover the prior incident, he said. Sedlik viewed it as an “educational opportunity,” he said.
With Von D, the former reality TV star claims that the tattoo she created is “transformative” enough to qualify as fair use.
Courts have battled over the issue of fair use for decades. Its application was the subject of a U.S. Supreme Court decision last year that was largely interpreted as an edict making it harder to prove fair use. In the 2023 case, the justices ruled that Andy Warhol’s painting of superstar musician Prince violated the copyright of the Lynn Goldsmith photo it was based on. The decision allowed Goldsmith’s lawsuit against Warhol’s estate to proceed. After the Warhol ruling, the judge now presiding over Sedlik’s case allowed the photographer’s lawsuit to proceed over Von D’s objections and claims of fair use.
The case is set to resume Wednesday. Von D is expected to testify.