Kat Von D defends Miles Davis tattoo in unusual copyright trial

Nancy Dillon

Celebrity tattoo artist Kat Von D appeared in federal court in Los Angeles on Tuesday to face allegations that she took an “iconic” photographer's photo of jazz legend Miles Davis and tattooed it on a friend without proper credit or compensation.

The former reality star appears Miami ink And Los Angeles Ink She sat before the jury as her lawyer said in his opening statement that Von D had only used the famous image for “inspiration” because she had created a “completely different” work on her friend’s arm for free seven years earlier.

The 1989 photo at the center of the trial, created by prosecutor Jeffrey Sedlec, depicts jazz legend Miles Davis staring directly into the camera lens while placing his finger to his lips in what Sedelec described Tuesday as a “shhhh” gesture. It was first published on hardcover Jaziz The magazine was published in August 1989 and registered with the United States Copyright Office in 1994.

“You'll see there are a lot of differences,” said Von D's attorney, Allen Bee. Grodsky, to the jury as he presented her defense. He pointed out “differences in the placement and shape of shadows, differences in the use of light, differences in hairstyles, and differences in the shape and embodiment of eyes.” He said Von D's tattoo had neither a jacket nor a black background. “Kat Von D's interpretation of Miles Davis had a sadder sentiment than Mr. Sedlake's,” her lawyer said. “And you see that he has a movement that does not exist in his hand. Kat Von D has not attempted to monetize her tattoos in any way. She did not take pictures of the prints she sold. She wasn't selling t-shirts or mugs. She did not sell the products in any way.

Sedlik took the witness stand first, spending more than an hour going over his credentials. The professional photographer and university professor described testifying before Congress about artists' rights and founding a non-profit organization focused on international licensing standards. He said it took him three years to plan the portrait of Davis, drawing sketches and consulting with the trumpet master himself.

“I knew he was playing softly to get the audience to lean in and enjoy every note,” Sedlik testified, explaining how he arrived at the “shhh” gesture. “I went in and put his fingers exactly in this arc to represent the note. I was building subliminal things in it.”

Sedlik first filed his lawsuit three years ago, alleging that Von D illegally reproduced his copyrighted image and used it to promote its brand through social media posts on Instagram, Facebook and YouTube that garnered more than 100,000 likes across the platforms. The lawsuit includes links to various social media posts showing Von D working on the tattoo on her boyfriend Blake Farmer's arm of nearly seven years. One post dated March 18, 2017 (that was He was still active on Von D's account on Tuesday) shows her applying ink to the farmer's arm with a print of Sedlec's photo pinned to the wall next to her.

“I can't believe this is my first time tattooing a photo #Miles Davis“,” reads her comment. “Thank you Blake for letting me tattoo you!” According to Sedlik, the post depicts Von D “attempting to accurately replicate every aspect of Miles Davis' famous image in tattoo form.”

Jurors hearing the case will now have to decide whether Von D's reproduction falls within the “fair use” doctrine that allows limited use of copyrighted material without permission. Artistic representations of copyrighted works can be protected by fair use if they “transform” the subject of the work into something new, such as a parody, criticism, or news report.

In his testimony Tuesday, Sedlik said he is actively defending the copyright of his image in Davis, even regarding the tattoo. When he saw a previous photo of a tattoo similar to his own in 2014, he reached out to the person and received a “respectful” response, he testified. He added that the man removed the photo from social media and apologized, prompting Sedlik to give him a retroactive license without financial compensation to cover the previous incident. Sedlik said he sees it as an “educational opportunity.”

With Von D, the former reality TV star claims the tattoos she created are “transformative” enough to qualify as fair use.

Courts have wrestled with the issue of fair use for decades. Its application was the subject of a US Supreme Court decision last year that was largely interpreted as a decree that made it difficult to prove fair use. In a 2023 case, judges ruled that Andy Warhol's painting of superstar musician Prince infringed the copyright of a photograph of Lynn Goldsmith on which it was based. The decision allowed Goldsmith's lawsuit against Warhol's estate to proceed. Following Warhol's ruling, the judge presiding over Sedlec's case has now allowed the photographer's lawsuit to proceed over Von D's objections and fair use claims.

The case is scheduled to resume on Wednesday. Vaughn D. is expected to testify.