Tattoo artist Kat Von D yesterday told a Californian court that "nobody ever asks for permission" to produce a tattoo version of a celebrity photograph.
That, if you’re wondering, is why she didn't get permission when she produced a tattoo based on a photo of jazz legend Miles Davis taken by photographer Jeffrey B Sedlik. Though, legally speaking, her defence to Sedlik's copyright infringement lawsuit doesn't rely on common practice among tattooists, but instead the concept of fair use.
It’s the fair use argument that makes this case of interest to the music industry, beyond testing what rights musicians and photographers could possibly be exploiting in the tattoo business.
With tech firms claiming that training generative AI models with existing content constitutes fair use under US copyright law - meaning they don't need permission from copyright owners - music companies are closely following any cases that could expand the definition of fair use.
According to Law360, Sedlik's lawyer Robert Allen kickstarted the proceedings in court earlier this week by insisting that producing a tattoo which is a straight copy of a photograph is never fair use. He then warned the court, "if her taking Mr Sedlik's photograph is allowed to stand without repercussions, her actions will influence millions of others to do the same”, adding "artists must respect the law and must respect other artists".
However, while testifying yesterday, Von D was keen to distinguish her use of Sedlik's photo from more commercial uses. She was just “tattooing my friend with his favourite trumpet player” and didn’t charge a fee for her work. “I'm not mass-producing anything or gaining any monetary value, so I think there is a big difference”, she added. “It's fan art".
In his lawsuit accusing Von D of copyright infringement, Sedlik noted that - while Von D may not have taken any money to produce the tattoo version of his Davis image - she posted a photo of the tattoo to her social media and that had marketing value.
In terms of the fair use debate, a key question is whether Von D's reinterpretation of Sedlik's photo as a tattoo was 'transformative', because, as the US Copyright Office notes in its explainer on the fair use principle, "transformative uses are more likely to be considered fair". Transformative uses, it adds, "are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work".
This was also central to the recent landmark fair use case that again involved the recreation of a photo of a musician, that being Andy Warhol's artworks based on photos of Prince taken by Lynn Goldsmith. In that case the US Supreme Court ultimately sided with Goldsmith stating that too wide a definition of transformative use would “swallow the copyright owner’s exclusive right to prepare derivative works”.
It was a ruling welcomed by copyright owners, including the music industry, because it restricted the reach of the fair use defence.
That ruling will now impact the Sedlik v Von D case. Seeking to persuade the jury that Von D's use of his client's photo definitely wasn't transformative or fair, Allen stressed that her tattoo was nearly identical to the original image with just a "few small differences" that were mainly the result of the tattoo being applied to skin rather than paper.
The case continues.