Photographer Jeffrey Sedlik photographed jazz musician Miles Davis in 1989. The photograph then appeared in JAZZIZ magazine in 1989. Sedlik has since sold licenses for the photograph and registered the photograph with the Copyright Office in 1994. In 2017, celebrity tattoo artist Katherine Von Drachenberg, better known as Kat Von D, used Sedlik’s photograph as a reference image for a tattoo. She first traced the image to create a line drawing before making a stencil which she then inked onto Blake Farmer before completing the tattoo using a freehand method. She did not charge Farmer for the tattoo. Kat Von D and her tattoo shop, High Voltage Tattoo, Inc. (“High Voltage”), posted images of the tattoo in process on Instagram. Sedlik sued Kat Von D, High Voltage, and KVD, Inc. (together, the “Kat Von D defendants”) for copyright infringement and violations of the Digital Millennium Copyright Act (DCMA).

The California Central District Court initially denied Sedlik’s motion for summary judgment and granted in part and denied in part Kat Von D’s motion for summary judgment. The district court denied Sedlik’s motion for summary judgment on copyright infringement, determining that there are triable issues of fact regarding substantial similarity, the only element of infringement at issue. The extrinsic test “‘compares the objective similarities of specific expressive elements in the two works,’ distinguishing between the protected and unprotected material in a plaintiff's work,” while the intrinsic test determines whether an ordinary reasonable observer would determine similar expression. Under the extrinsic test, the district court found that though Sedlik was deserving of broad protection and that elements of the photograph (such as the choice of lighting and angle, but not the pose) are protectible, there remained a triable fact about the outcome of the extrinsic test. The district court determined that a reasonable jury could find meaningful distinctions between the two works, including the background and the treatment of Davis’ hair and face. The district court also concluded that the intrinsic test was also best left to the jury because a reasonable jury could find a lack of substantial similarity in “total concept and feel.”

The district court also found there were triable issues of fact concerning Kat Von D’s fair use defense: the first factor, whether the tattoo was transformative and commercial, and the fourth factor, whether the tattoo usurped the market for the photograph. The district court granted the Kat Von D defendants’ for summary judgment as to KVD, Inc. finding that KVD, Inc. is not liable for direct, vicarious, or contributory infringement because KVD, Inc. did not “cause” the alleged infringement, nor was KVD, Inc. supervising or inducing the alleged infringement. The district court also granted the Kat Von D defendants’ summary judgment motion pertaining to claims of falsification and removal of copyright management information (CMI) in violation of the DCMA because Sedlik did not provide evidence showing Kat Von D had the requisite mental state for the falsification claim, nor did he provide evidence showing Kat Von D knowingly removed CMI for the removal claim. The district court also partially granted the Kat Von D defendants’ summary judgment motion regarding remedies because Sedlik did not proffer evidence relating to actual damages, though there was a triable issue of fact regarding whether the Kat Von D defendants indirectly profited off her social media posts.

Following the Supreme Court’s decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, both parties moved for reconsideration of their respective motions for summary judgment. The district court granted both motions and on reconsideration, found that Sedlik had now met his burden that the work was not transformative and that the tattoo and the social media posts would have to be analyzed individually, not collectively. The district court noted that Warhol “does not change the longstanding rule that recasting a photograph into a different visual medium is not sufficiently transformative” and the Kat Von D defendants have not demonstrated that their use is “beyond that required to qualify as a derivative.” Despite earlier finding that Kat Von D defendants had “met their burden of showing that the [t]attoo has a purpose or meaning distinct of that from the [photograph],” the Kat Von D defendants’ previous arguments predicated on (a) the different “environments” of a magazine illustration and a human arm and (b) the “[t]attoo’s aesthetic character” are “foreclosed by Warhol.” The Kat Von D defendants’ reliance on such arguments thus results in an “absence of evidence” of transformative use. Furthermore, the tattoo is not reliant on the photograph like in a parody, criticism, or commentary, particularly when Kat Von D admitted that she could have used another image in its place. 

However, the district court noted that, as before, a triable fact remains under the first factor: whether the Kat Von D defendants’ use was commercial despite the gratis tattoo because “[a] reasonable factfinder could conclude that Kat Von D [i]nked the tattoo for the commercial purpose of building her personal brand and attracting customers to her shop.”

The district court’s analysis on the second, third, and fourth factors remained the same post Warhol. The district court found that the second factor, the nature of the original work, weighed in favor of fair use because even though the photograph was sufficiently creative, the photograph had been published for decades. In determining the third factor, the amount and extent of use of the original work, the district court found because Kat Von D picked and chose which aspects of the photograph to use in the tattoo as evidenced by her line drawing and she did not need to copy the pose to demonstrate “melancholy,” the copying of multiple elements weighed against fair use. Noting that the fourth factor is the most significant factor in determining fair use, the district court found that though the tattoo and the photograph do not compete in the same market, Sedlik had proffered evidence that he had previously licensed and been asked to license the photograph for tattoos, demonstrating a triable fact of whether there is a tattoo licensing market for the photograph for tattoos. In considering the social media posts separately, the district court found that there was a triable issue as to whether the posts constitute fair use.

Following a jury trial, the jury found in favor of the Kat Von D defendants, determining that both the tattoo, the sketch, and certain of the social media posts were not substantially similar to the photograph and thus did not infringe Sedlik’s photograph. The jurors found that these in-process social media posts were fair use. The jury also found social media posts depicting the finished tattoo fair use despite finding that the finished tattoo posts were not substantially similar, apparently ignoring the verdict form’s instruction to skip the fair use determination for any works found not to be substantially similar. Jurors interviewed afterwards by Rolling Stone noted that “[i]t just seemed really obvious. The verdict was easy. One tattoo on a person’s skin is not like selling a painting;” “[Kat Von D] stood her ground. We were proud of her for taking this fight on;” and “Every tattoo is unique.” On February 27, 2024, Sedlik filed a renewed motion for judgment as a matter of law and a request for a new trial.