Tattoo artist Katherine Von Drachenberg popularly known as Kat Von D is being accused of copyright infringement by photographer Jeffrey B Sedlik in what is believed to be the first lawsuit over copyright protection and its extension to tattoos.
The case gives rise to the question of artistic freedom and bodily autonomy against photographer’s copyrights over their creations. The suit is about a tattoo Von D inked on a colleague in 2017, where she used a traced sketch of the famous picture of Miles Davis taken by Sedlik in 1989. Sedlik accused Von D of using the picture in the tattoo without any authorization in 2021.
After reviewing arguments from both sides, a US District Judge decided to bring the case to trial, where a jury will be tasked with deciding whether the use of the copyrighted image in a tattoo can be considered as “fair use”. The “fair use” defense is also being considered a case about Andy Warhol’s silk print of a photo of Prince. Above the profits and additional damages, Sedlik is also asking the court to order Von D to remove any online and print content incorporating the photograph.
Von D is arguing that a tattoo comes under the “fair use” doctrine, and that tattoos have no commercial value. However, Von D’s argument that tattoo work is transformative was rejected by the district court judge on the ground that a tattoo doesn’t create a different meaning i.e. it is not transformative just because it is located on the human body.
The argument on “fundamental rights of bodily integrity and personal expression” was not addressed by the judge. One of the aspects that is of major consideration in this case is the competing interests of bodily autonomy and rights if the copyright owner to control public display of their intellectual property. The forcing of a removal of a tattoo by a court order or injunction is fundamentally against the constitutionally protected right of bodily autonomy.
The final decision of this case is set to cause shockwaves in the tattoo industry on the extent of use of copyrighted images in tattoos. The extent of referencing and the right to display and share tattoos is also under consideration.
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