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Nancy Dillon
Kat Von D took the witness stand in her California copyright infringement trial on Wednesday and told jurors that she had inked thousands of tattoos based on photographs and never sought a licensing deal because she considers the practice ” “fan art.”
The artist who rose to fame on reality shows Miami Ink and Los Angeles Ink is being sued for copyright infringement by a photographer who claims to have illegally reproduced her “iconic” 1989 photo of jazz legend Miles Davis both in a design she tattooed on her friend’s arm in 2017 and on several Social media posts showing the tattoo.
Testifying as the fourth witness in a trial taking place in federal court in downtown Los Angeles, Von D told jurors that he stopped charging for tattoos years ago and gave the Miles Davis tattoo to his friend Blake Farmer of free form. He said Farmer, a lighting director who worked with her on photo shoots for her former cosmetics line, was a big fan of Davis and provided her with a copy of the reference photograph he used. He said the low-resolution image did not include a watermark identifying it as a copyrighted work belonging to plaintiff Jeffrey Sedlik.
Von D insisted he “never” obtained a license to use a photograph as a reference when creating a tattoo. He said he also hasn’t heard of any of his classmates doing that. “No one ever asks permission,” he testified under oath. In his experience, photographers who see his tattoos consider it a “compliment” that someone chooses to “carve” a version of his work “permanently into their skin.” Von D said he never considered it copyright infringement.
“You understand that magazines, before they can use a photograph, have to do their due diligence. They can’t just use one without permission, right? Sedlik’s attorney, Robert Allen, asked.
“Yes, but I think there’s a difference between (a tattoo) and selling a mass-produced product or magazine: selling thousands of units based on someone’s artwork,” Von D responded. “I’m literally tattooing my friend.” with his favorite trumpeter because it means a lot to him. I didn’t make any money from it. I’m not mass producing anything. I think there is a big difference. It’s fan art. I consider this fan art. So I see it differently than a corporation taking advantage of an artist. “That’s not what I’m doing.”
Allen tried another approach, asking whether Von D would feel as comfortable using a reference work that belonged to one of her colleagues. “Would you copy another artist’s tattoo design?” she asked.
“Sure. People do it all the time,” he testified. “Like Nicole Richie’s rosary on her ankle, Britney Spears’ cross on her stomach… Pam Anderson’s bracelet. Those are all iconic celebrity tattoos that a lot of people want. They’re paying homage. It’s fan art. That’s what tattooing is.” Von D said that even if he tried, he could never recreate an image perfectly in a tattoo. And he doesn’t try, the tattoo artist said, ” I make my own interpretation.”
Allen guided Von D through a series of posts on her social media accounts where she promoted business initiatives including her line of cosmetics, books and shoe designs. Jurors will have to decide whether Von D’s posts about Davis’ tattoo, which were posted on the same social media accounts, were used to burnish his brand and promote her financial interests.
“I don’t see this as an advertisement,” he said of a September 2022 post about a children’s book he was publishing. “You and I may differ on what we think advertising is.”
Sedlik was the first witness in the trial that began Tuesday. He told the jury that it took him three years to plan the photo shoot in which he finally created the central image of the dispute. Sedlik said he visited Davis at his Malibu home and built a makeshift photo studio from scratch in the yard using aluminum frames and sailcloth. He personally positioned Davis’ fingers so that it looked like he was making a “shhh” sound, he said.
“I knew I played quietly so the audience would lean in and savor each note,” Sedlik told jurors Tuesday, explaining how he arrived at that gesture. He said he also “went in and placed his fingers exactly on that arc to represent the musical notation,” adding, “I was building subliminal things.”
Sedlik, a professional photographer and adjunct university professor, said he makes much of his living from licensing his work. He actively defends himself against copyright infringement and reached out to Von D after his social media posts caught his attention in 2018, he said. Upon receiving no response, Sedlik said he filed his lawsuit in February 2021.
In her testimony Wednesday, Von D said she only used Sedlik’s photograph as a starting point. She admitted that she put it in a light box and that she made a stencil with it that she transferred to Farmer’s arm for “mapping” purposes. From there, she did all the shading “freehand” while transforming the work into something new, she said.
“I did a lot of textures and movements around it that aren’t included in the original photo,” he testified, explaining that he was also inspired by Davis’ 1969 studio album cover. bitch beer. “I was trying to bring that out of the album art, to bring in some of that movement.” She agreed that the finger arrangement, pose and perspective of her tattoo reflected Sedlik’s photo, but said her shading added new shadows and highlights. “I made my own interpretation of the lighting. “I’m not a photocopier,” she joked.
“I think his tattoo work is excellent, but that’s not why we’re here,” Sedlik’s attorney said.
Von D repeatedly referenced Davis’ album art and told jurors that her plan with Farmer was to turn the initial portrait into a larger tattoo. “Instead of recreating the hair as it was in the photograph, I made my own version where it looked like smoke and negative space. That would lead to the album cover,” he said on the witness stand.
When Allen again accused Von D of illegally copying the photo, she backed down. “I made my interpretation of the photo, with my adjustments,” she insisted. “The hairline is different because it is my interpretation of telling the story of this artist who meant so much to (Farmer). She was using the artwork that she was inspired by. “The tattoo is also a narrative, just like photography.”
In his complaint, Sedlik said he deserves up to $150,000 in damages and legal fees. Juries hearing the case will have to decide whether Von D’s reproduction is protected by the “fair use” doctrine, which allows limited use of copyrighted material without permission. Artistic representations of copyrighted works can be protected by fair use if they “transform” the work into something new, such as a parody, criticism, or news report. The doctrine was the subject of a controversial U.S. Supreme Court decision last year that was largely interpreted as an edict making it more difficult to prove fair use. In that decision, the judges ruled that Andy Warhol’s painting of superstar musician Prince violated the copyright of the Lynn Goldsmith photograph on which it was based. After the Warhol ruling, the judge now presiding over Sedlik’s case allowed him to proceed despite Von D’s objections and fair use claims.
Sedlik and his attorneys concluded their case Wednesday. Testimony is expected to resume Thursday, with closing arguments tentatively set for Friday.