The art of tattooing traces back to the upper Paleolithic period in Europe and it can be said that tattoos nowadays have become more common since it is widely loved by people these days. But it is certain that pages of history would have never imagined that the tattoos would attract copyright infringement. Yes, you read it right. Certainly, tattoos do draw copyright infringement if the tattoo involves a copyrighted element. This article discusses on tattoos and their copyright effects by analyzing the case of Sedlik v. Von Drachenberg.
Now, let us quickly get into the facts of the case, a lighting technician tattooed a photo of legendary jazz musician Miles Davis onto his arms. That particular photo of Miles Davis was photographed by a Californian photographer Jeff Sedlik and further he copyrighted the image owing to its iconic representation of Miles Davis. The tattoo artist, in this case, is Katherine Von Drachenberg, who is a world-renowned celebrity tattoo artist and she is apparently the principal defendant in this case. It was alleged by Jeff Sedlik that Kat von D has committed a copyright infringement by reproducing the photograph of Miles Davis onto her client’s skin since it is an unauthorized derivative work and then displaying it on her social media handle with a motive to promote her business.
Kat von D sought the plea that her tattoo work is a fair use of the copyrighted photograph. The court is tasked with determining two issues whether or not, Kat Von D employed copyrightable elements from Sedlik’s photograph in the creation of her tattoo, and if it is in affirmation, then whether or not her work is protected by the copyright law’s fair use doctrine.
On the question of substantial similarity, Kat von D argued that the protectable elements of the copyrighted photograph were not copied. The Central District of California Judge Dale Fischer left the question for the Jury to deliberate upon since the tattoo contained certain differences such as light, shading on Miles Davis face, the hairline on his head, and the background. On the question of fair use as well the issue is left to the Jury to decide upon.
It is certainly a complex issue to decide upon since it touches the boundaries of an individual’s fundamental rights to bodily integrity and personal expression. On the basis of lack of evidence, the summary judgment was granted in favor of Kat von D’s company. Thus, the intricacies involved in a tattoo of a copyrighted photograph can be well understood in this case.
BY
AISHWARYA. N
3rd year BA LLB (Hons)
UPES School of Law