By: Jacqueline Purmort-LaBue

Long gone are the days where tattooed ladies were a radical phenomenon for rabid observation in circuses, sideshows, and dime show museums. As of 2023, it was estimated that 32% of Americans have a tattoo, with 22% sporting more than one. Visible tattoos have become more prevalent in the workplace and general attitudes are more accepting than ever. 

Part of the popularization of tattoos and tattoo culture can be attributed to the rise of reality TV shows like Ink Master and LA Ink. Earlier this year, Kat Von D, a celebrity tattoo artist famous for her work on LA Ink and her cosmetics line, was sued by Jeffrey Sedlik for copyright infringement. The issue arose over an Instagram post depicting Kat Von D tattooing a portrait of jazz singer and songwriter, Miles Davis. The portrait is nearly identical to Sedlik’s photo of Davis published on the cover of JAZZIZ magazine, with Davis staring straight into the camera with one finger over his lips. 

Kat Von D won when a jury ruled unanimously that her reproduction in a tattoo did not violate copyright law. The lawsuit has become the latest battlefield to determine what constitutes “fair use” under the Copyright Act of 1976. The Act establishes the basis for existing copyright infringement law, which prohibits anyone from reproducing, distributing, performing, publicly delaying, or creating derivative works from a copyrighted work without permission from the copyright owner. The Act also establishes the legal concept of “fair use,” which permits creators to use limited portions of a copyrighted work without having to pay a fee to the copyright owner or ask for permission. Fair use prevents the rigid application of copyright law, encouraging creativity and allowing other creators to use and build upon prior works in a way that does not unfairly deprive copyright owners of the right to control and benefit from their works. The lawsuit claimed infringements based on the reuse of the photo on the tattoo itself, the social media posts by Kat Von D, and the sketch of the photo that Kat Von D used to design the tattoo. 

From Sedelik’s perspective, this case was about protecting the works of visual artists and their livelihoods. Although copyright is utilized to protect originality, the fair use doctrine functions to inspire creativity and allow for artists to build off one another. Here, the function and creation of a photograph and a tattoo are wildly distinct. Any tattoo artist can confirm that the process of tattooing is drastically different from other forms of expression. Drawings do not always translate to skin, and many tattoo artists spend years practicing on pig’s skin before they dip their needle into a live client. 

By utilizing the art of tattooing, Kat Von D added a layer of originality to the image. Tattoos are also living, breathing pieces of artwork. While a physical photograph or painting may “speak” to an individual, beckoning admiration from afar, tattoos are so meaningful to the wearer that they become integral to the individual’s own physical appearance and identity, embedded under the skin. 

If Kat Von D loses on appeal, the outcome could have wide implications and far-reaching consequences for the tattoo industry. Many tattoo artists rely on clients bringing in their own ideas and designs, sometimes sourced from artists discovered on Instagram or Pinterest. Some non-tattooing artists have found a way to receive recognition by offering “tattooing rights” on their online shop, but for the tattoo artists, this might mean being increasingly cautious about the kind of work they accept. On the client side, it might make it more difficult to get tattooed. 

While the jury found that the social media posts were protected by fair use, they also found that the two works in question were not substantially similar, avoiding the potentially broader question of fair use in the tattoo market, and leaving the opportunity open for further lawsuits on this issue. If the jury had determined that the two works were substantially similar and yet the social media posts were still covered under fair use, tattooing itself being enough of a modification of the original work to qualify as fair use would be a clearer precedent on the issue. 

For now, tattoo artists remain protected by fair use, but as the popularity of tattoos continues to soar, the legal landscape surrounding artistic ownership and creative expression will likely evolve, challenging both artists and clients to navigate an increasingly complex relationship with the art form. While many tattoo parlors, artists, customers, and fanatics are breathing a sigh of relief from this judgment, the outcome is not dispositive on future lawsuits and full protections have yet to be granted. The industry considers copyright provisions in tattooing waivers as a safeguard against future lawsuits while hoping that future court decisions will show sensitivity to the competing interests of both the artists and the client. 

Go ahead, book that Pinterest tattoo while you still can.

#WJLTA #copyrightlaw #IP #tattoos