Court Revises Opinion In Kat Von D Tattoo Case In Wake Of Andy Warhol Foundation v. Goldsmith

• Jurisdiction: United States,Federal
• Law Firm: Global Advertising Lawyers Alliance (GALA)
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Advertising, Marketing & Branding, Social Media
• Author: Mr Brian Murphy (Frankfurt Kurnit Klein & Selz)
• Published date: 31 October 2023

Tattoos and fair use. Again. (See this post from last month.)

The plaintiff Jeffrey Sedlik is a photographer who took (and owns the copyright in) this iconic photo of Miles Davis. The defendant is tattoo artist Katherine Von Drachenberg, better known as Kat Von D, famous for her star turn on the reality show LA Ink and her general ferocity. Ms. Von D used Sedlik's photo as a reference when she inked a design on the upper arm of her friend Blake Farmer (at no charge). (My partner Jeremy Goldman wrote about this case when the complaint was filed.)

Sedlik sued, alleging (among other things) the following separate acts of infringement: (1) the inking of the design on Farmer's arm, (2) the creation of a line design (essentially a tracing of the photo) that was used as a stencil to transfer the drawing onto Farmer's skin, (3) the publication on social media of photos that documented the process of inking the tattoo on Farmer's arm (the "process photos") and (4) the publication on social media of a photo that showed the completed tattoo (the "completed photo").

For context, here is one of the process photos posted on Ms. Von D's Instagram, with Sedlik's photo visible in the background:

Last year, both parties moved for summary judgment on the copyright infringement claims. Sedlik argued that the tattoo design was an unauthorized derivative work, and Ms. Von defended on fair use grounds. In May of 2022, District Judge Dale S. Fischer (C.D. Cal) issued an opinion in which she concluded that because there were disputed issues of fact on the first and fourth statutory fair use factors (see 17 U.S.C. ' 107), "the issue of fair use as to the Tattoo and the associated social media posts is more appropriately left to a jury."

Both parties moved for reconsideration following SCOTUS's opinion in Andy Warhol Foundation v. Goldsmith (see this post). Concluding that Warhol represented "a material change in controlling law" that "changes the Court's analysis," the court granted the motion. And while Judge Fischer stood by her original holding that disputed questions of fact precluded summary judgment on the fair use defense, she concluded that Warhol mandated that her prior opinion be modified in two respects.

• First, the court noted that Warhol requires that the fair use defense be considered separately for each specific use by Ms. Von D of Sedlik's photo. Since that was something the court had not done in its original order, the court proceeded to address each use...