Photographer suing tattoo artist Kat Von D over copyright infringement

Braineack

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NEW YORK - Celebrity tattoo artist Kat Von D is the subject of a first-of-a-kind lawsuit over artistic interpretation and copyright infringement.

In 2017, Von D, whose legal name is Katherine Von Drachenberg, tattooed a likeness of an iconic photograph of jazz great Miles Davis onto a person.

Von D did not get paid for the tattoo but did post her work on social media.

In 2021, the man who took the photograph, Jeffrey Sedlik, filed suit against Von D for copyright infringement.


"Essentially he's saying that the tattoo is substantially similar to his photograph of Miles Davis and therefore Kat Von D has committed copyright infringement," said Aaron Moss, a copyright attorney in California.

Von D has insisted that her version of the photograph is transformative of the original image.

A federal judge in California recently decided that the case can go to trial.
 

AlanKlein

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There was a similar case a couple of years ago and the artist lost if I recall correctly. I guess that raises the question, at what point does a "copy" become transformative and not considered infringement? It all seems so "iffy".
 

Soocom1

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From Wikipedia:


Duration of copyright​

Expansion of U.S. copyright term (assuming authors create their works at age 35 and live for 70 years)
Copyright protection generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. For works created before 1978, the copyright duration rules are complicated. However, works published before January 1, 1927 (other than sound recordings), have made their way into the public domain.
 

cgw

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A very faithful rendition of the photo decorated a pull-down store door in Toronto's Kensington Market for quite some time. Don't recall any pending lawsuits. She was smart enough to go uncompensated for the tattoo.
 

Rickbb

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A very faithful rendition of the photo decorated a pull-down store door in Toronto's Kensington Market for quite some time. Don't recall any pending lawsuits. She was smart enough to go uncompensated for the tattoo.


Posting on social media constitutes advertising to generate business income.

The copying alone and not getting any financial gain was probably ok and she could possibly win that part. Using it in an advertising medium was not and may cause her to lose.
 

cgw

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Posting on social media constitutes advertising to generate business income.

The copying alone and not getting any financial gain was probably ok and she could possibly win that part. Using it in an advertising medium was not and may cause her to lose.
Do you practice law?

People she's inked certainly post pix of her work for them. Advertising? Maybe. Interesting case.

BTW, the Warhol case testing the bounds of "fair use" of copyrighted material is bound for the Supreme Court. The tattoo case will likely be delayed until a SCOTUS ruling.
 

Rickbb

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No not a lawyer thank goodness, but have been involved in several patent and copyright lawsuits.

The lawyers I worked with would spin it like this. A client posting what they have a copy of would fall under “fair use” since they didn’t create the copy. The artist creating the copy would be accused of using the posted image for advertising their services to attract customers therefore “commercial use” and infringing.

It all boils down to who has the better lawyer and puts on the better dog and pony show. Sad but that’s how our legal system works 90% of the time.
 

snowbear

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At least a take-down order wasn’t issued. 😉
 

Space Face

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Thankfully we don't have such an ingrained sue culture here in the UK although it is getting worse.
 

RacePhoto

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Of course you can't photograph a tattoo because it's a copyrighted work of art. This is twisted.

If just repainting someone else's work was transformative, this would be easy. I don't buy that. And for the legal wrangling side, what is substantially different? Ha! Who's the judge and what state are you in?

I still can't believe that music sampling in some ways, got a free pass. OK and in some cases hasn't. This is all too variable for anything beyond, the decision in that court says one thing, while in another district the decisions might be different.

OK someone clue me in, Why is music different? I see sound recordings with the same laws, I'm talking about Public Domain from the 1920's, not modern? Copyright on photos is currently Before 1927 is public domain, copyright expired, and as far as I see, music is the same?

In January 1928 songs will become public domain.

Anyway, transformative and there are all kinds of cases and suits, some of the people who worked with "appropriation art" have been being handed themselves a bags of losses more recently. I never understood how copying something or changing colors or adding some cropping or scribbles, makes it transformative!

I'll try to go back on topic. A tattoo is a work of art, just like an oil painting. If someone makes a drawing or painting of someone else's photographic work, it's infringing. No I'm not a lawyer, that's a personal opinion.
 

RVT1K

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An interesting situation with personal implications!? Several years ago I got a tattoo that was the artwork from an album cover. And while I don't know what the number may be, I'm betting a good percentage of tattoos out there are based on some preexisting image be it photograph, painting, tattoo, or something else.

Of course, law and common sense rarely go together.

As far as music sampling goes..I thought there was a line drawn over/under a certain number of notes that could be used before flags were raised?
 

AlanKlein

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You can use a lot of copyrighted music on your Youtube videos if they're for personal use. Check the requirements on YouTube.
 

RacePhoto

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Even if you don't monetize the video, you are still using that material without compensating the original owners, which is still copyright infringement. Some songs are PD, some allow use, there are creative commons, others are like rabid bulldogs about anyone using their music. I was wondering how some court cases sampling got a free pass and others they had to pay. The law is the same, but the decisions are in different cases and districts.

Back to art and tattoos. The catch is, used without permission from the original creator of the image. Making things more complex, if I shoot a photo of someone and they have a tattoo, the artist might want to sue me for using his tattoo art, for gain, without permission. Seems kind of silly, because the person who paid for the art, now owns it and it's on their body. I suppose someone would need to make some contracts that say, the rights and all ownership has been transferred to the person who hired the artist.

Canada: Artists to cash in when work is resold with update of copyright laws.

"Under reforms of copyright law, being drafted by Innovation Minister François-Philippe Champagne and Heritage Minister Pablo Rodriguez, artists would get a “resale right” giving them a royalty during the term of copyright, according to Champagne’s office.

Artists complain that they now get nothing if paintings and sculptures increase in value dramatically."

Do the artists give back money if the work goes down in value? Term of copyright is life plus 50 years or life plus 75 years depending on when. So in effect, the artist gets to try to take a nibble from any profits, for as long as they live, and possibly their estate can as well.

We already have newer laws in the US and around the world, that when you buy a work of art, you don't own the reproduction rights anymore. Unless of course you pay for that. So I buy a painting and I can't use it for scenery in a home for sale brochure. I can't make prints or shirts or mugs or...

So the lawyers get to have all the fun and the tattoo artist will now be sued for using a copyrighted image. He could lose and have to pay damages or could get found not guilty for making a transformative version? The usual number for infringing on a work of art, starts at $250,000 so the original artist, is going to need to have deep pockets to sue in the first place.

I'll say that if I find someone infringing on something I shot, I can't afford to try to get a reward for their theft. There could be lawyers who might take a case on a contingency basis, but they will want something they believe is profitable, and they can win. Lets say I get a judgement for $250,000 against someone and they don't have much income. Good luck collecting, I'd still get nothing and it would cost me a bunch of money.

This isn't easy or simple.
 

AlanKlein

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Youtube apparently has agreements with the music publishers to put advertisements on videos that are posted on youtube. So the music artists do get paid when people use their songs as part of their video. They still can object, and YouTube will take down the music portion if the publisher objects.
 

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