Should I Tattoo That? How Sedlik v. Von Drachenberg’s Fair Use Analysis Could Shake Up a Tattoo Industry Norm
Various forms of visual arts exist under the Copyright Act’s protective wing, tattoo artists, however, have traditionally opted out of copyright protection, choosing instead to reside in the “negative space” where creativity and innovation thrive in the absence of formal IP protection.[1] In recent years, the tattoo industry has grown exponentially in both size and profits. A 2019 poll revealed 30% of Americans have at least one tattoo, a 21% increase since 2012.[2] The American market for tattoos is reported to have grown 8.4% per year between 2017 and 2022, with tattoo artists estimated to bring in $1.4 billion in revenue in 2022.[3]
While traditionally viewing themselves as outsiders to the protections afforded by copyright law,[4] tattoo artists, perhaps incentivized by their growing popularity and profits, have started to assert their rights and nudge tattoos under the formal umbrella of copyright protection. In the past two decades, tattoo artists, or licensing companies who hold the copyright in a tattoo, have sought to enforce their exclusive copyright rights against third parties who made unlicensed reproductions of their tattoos in some capacity.[5] While courts have not expressly held that tattoos are protected by existing copyright law, several have indicated that tattoos are protected by copyright so long as they meet the minimum requirements of the Copyright Act.[6] However, courts have not yet delineated the scope of copyright protection for tattoos and under what circumstances tattoo artists can enforce their copyrights.[7]
As tattoo artists have sought to ride the wave of their popularity into copyright protection, their increasing popularity and profitability could potentially incentivize third parties to assert their copyright rights against tattoo artists.[8] Sedlik v. Von Drachenberg, a federal district court is considering that very situation: Not whether a tattoo artist can enforce their copyright, but whether a tattoo can violate a third party’s copyright.[9] Sedlik is the first instance of a third-party, in this case a photographer, alleging that a tattoo artist using their copyrighted photograph as a reference image should be considered infringement.[10] The case has thrown tattoo artists into the crosshairs of a larger debate about the unlicensed use of copyrighted images in visual arts, which could have far-reaching implications on a common and widespread industry practice in tattooing: the use of reference images.
The Photographer and the Tattoo Artist
Jeffrey B. Sedlik is a well-known photographer known for his dynamic portraiture of music, entertainment, and celebrity personalities.[11] Around 1989, Sedlik took a black and white portrait of jazz legend Miles Davis posed with his index finger held to his lips as a commentary on Davis’s use of silence in his compositions.[12] The portrait was distributed widely at the time, appearing both internationally and domestically in numerous magazines, such as Jazziz Magazine.[13] Sedlik registered the portrait for copyright protection in 1994.[14] In the years since, Sedlik has entered into licensing agreements authorizing reproduction, distribution, and display of the portrait for a variety of purposes.[15]
In 2017, tattoo artist Katherine Von Drachenberg, professionally known as Kat Von D, was approached by Blake Farmer, a former colleague, to tattoo a realistic portrait of Miles Davis.[16] Like the jazz legend, Farmer was a long-time trumpet player and studied jazz in college.[17] After approaching Von D, Farmer provided her with a reference image of Davis that he found while conducting a Google search.[18] It was a black and white photograph of Davis holding his index finger to his lips.[19] Over two appointments in 2017, Von D tattooed a portrait of Davis similar to how he appeared in the reference image provided by Farmer.[20]
In February 2021, four years after Von D completed the tattoo, Sedlik filed a lawsuit alleging that Von D infringed on his copyright in the Davis portrait by impermissibly reproducing it without a license.[21] Von D has mounted a defense of Sedlik’s infringement claims, alleging that her tattoo is protected from infringement under the doctrine of fair use.[22]
The Use of Reference Images in Tattooing
The Supreme Court is seeking to solve a similar issue this term as they consider the Second Circuit’s controversial fair use decision in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which seeks to answer the question of whether an artist can appropriate unlicensed, copyrighted source material for use in their work.[23] Appropriation in visual arts refers to the “intentional borrowing, copying, and alteration of existing images images and objects” that are incorporated into an artist’s own work.[24] Andy Warhol, a well-known pop artist of the late 1900s, was renowned for his appropriation, and subsequent aesthetic manipulations, of common imagery, celebrity photography, and every-day objects.[25]
In Warhol, however, Warhol’s celebrated means of appropriation is what has landed him and the Andy Warhol Foundation in the metaphorical legal hot seat.[26] The Warhol dispute centers around several silkscreen prints and pencil drawings that Warhol created using a photograph of pop singer Prince taken by photographer Lynn Goldsmith.[27] Goldsmith originally took the photograph in 1981 and licensed it to Vanity Fair Magazine for Andy Warhol to use as a reference image for an illustration that would be published in the magazine with attribution to Goldsmith.[28] Without her knowledge or permission, Warhol used her photograph as the foundation for fifteen silkscreen prints.[29] Where Goldsmith sees infringement, the Warhol Foundation only sees fair use.[30]
The factual similarities between Warhol and Sedlik are not surprising when one considers that tattoos are a form of appropriation art. Like Warhol’s use of Goldsmith’s photograph, tattoo artists commonly use reference images in their design and tattooing process.[31] While tattoo artists frown upon client’s bringing in a reference image depicting another artist’s tattoo, tattoo artists are less reluctant to incorporate works of other visual art forms into their tattoos.[32] Some tattoo artists even urge clients to provide them with reference images.[33] By providing one or more reference images, a tattoo artist can borrow, or appropriate, some of the visual elements that the client prefers in the tattoo’s final design.[34]
Reference images are particularly relied on in the genre of realistic tattoos, where the goal is to create a tattoo that depicts a subject matter as close to life as possible.[35] The realistic tattoo process is exemplified by Kat Von D’s tattooing process as described in Sedlik. Von D created a line drawing of the reference image on a stencil that she supplied to her client’s arm.[36] Then, Von D “freehand” tattooed the finer details and broader shading of the portrait while referring to the reference image directly next to her workstation.[37] The result is typically a recognizable near copy of the reference image.[38]
The Court’s Fair Use Analysis
In both Warhol and Sedlik, the case boils down to whether fair use allows the kind of appropriation that Warhol and Von D used in their art. During a fair use analysis, courts consider four statutory factors: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”[39]
In Sedlik, while the court allowed the issue of infringement and fair use to continue forward to trial, the court rejected several of Von D’s key fair use arguments.[40] Von D relied heavily on the first factor of fair use, alleging her tattoo is transformative in purpose and character for three reasons.[41] First, while Sedlik created the portrait “to comment on Davis’s use of silence and negative space in his music,” Von D asserts that the tattoo’s subjective meaning to her client, which include a personal identification with the jazz legend, are indicative evidence of the tattoo’s transformed purpose.[42] Second, Von D argues that by turning the likeness of Miles Davis as depicted in Sedlik’s photograph into a tattoo, the tattoo has a distinctly different function, character, and meaning than a photograph.[43] Third, Von D argues that while she relied on Sedlik’s portrait as a reference image, the tattoo was not a direct copy because she added her own style to the portrait to give the tattoo a “more melancholic aesthetic.”[44]
The court expressly rejected Von D’s first and second arguments for the transformative nature of the tattoo finding that Farmer’s subjective opinion about his tattoo is not dispositive and largely irrelevant to the transformative factor.[45] Further, the court noted that turning a work into a tattoo does not inherently create a different purpose just by being located on the human body and depicted in a different medium.[46]
Von D also argued under the fourth factor, which considers the commercial implications of the tattoo on Sedlik’s portrait, that her tattoo does not negatively impact the value of Sedlik’s photograph because the market for a tattoo does not overlap with the market for the photograph.[47] Both the court and Sedlik acquiesce that “[t]here is no evidence that the [t]attoo is a substitute for the primary market for the [p]ortrait.”[48] However, the court sided with Sedlik, who argued that since he has previously licensed the Miles Davis portrait for various uses, including in a tattoo, Von D’s unlicensed use of the portrait in a tattoo could impact his ability in the future to license the portrait for use in tattoos.[49]
Von D argued in response that tattoo artists should be largely exempt from licensing agreements for copyrighted photographs, pointing to expert testimony about the “pervasive” use of reference images in the industry and that requiring license agreements would “stifle creativity” and “disrupt the settled practices of the tattoo profession.”[50] The court rejected this argument, finding nothing particular about the tattoo industry that should exempt from licensing requirements that other visual artists are subjected and that the tattoo industry’s procedures could always change to accommodate the time required to obtain a license if required.[51]
The Implications
By seemingly reducing the importance of the transformative factor of fair use and emphasizing reproduction licenses, the court in Sedlik seems to be echoing the Second Circuit’s application of fair use in Warhol. In Warhol, the Second Circuit reduced the importance that past court decisions had placed on the transformative factor.[52] The Second Circuit instead held that a work of art cannot be considered transformative based solely on either the addition of an artist’s distinctive style or by an artist’s subjective intent to create a new work.[53]
The decision has split the creative community in two. Photographers like Sedlik, who filed an amicus brief in the case in support of Goldsmith, argue that expanding fair use in Warhol could pose “an existential threat to the business of photography” by ridding photographers of any ability to license their work for use by other artists.[54] While substantively strengthening copyright rights for some, including photographers like Goldsmith and Sedlik, opponents have argued that it restricts artistic creativity and progress by limiting the sources that an artist can be inspired by.[55] This creativity-stifling argument is echoed by Von D in Sedlik, who argued that finding fair use in this instance allows for innovation within tattooing.[56] If the court ultimately finds infringement in this case, it will likely place significant hurdles on tattoo artists who have long relied on the legality of the wide-spread and common use of reference images in tattooing. But as echoed in the supporters of Goldsmith, a verdict for Sedlik would reinforce the rights of photographers, and other artists whose work is commonly appropriated in tattoos, by changing a long-standing tattoo industry practice that deprived photographers of the ability to monetarily profit from licensing their work.
With a Supreme Court decision impending in Warhol this term, clarity on how courts should balance these competing interests and apply fair use when considering appropriation in visual art is, hopefully, forthcoming. For now, tattoo artists in the nooks and crannies of copyright law are left wondering: Can I tattoo that? And perhaps should start asking: Who owns the copyright for that?
Footnotes
