The judge who oversaw the copyright dispute that centred on a tattoo of Miles Davis has declined to order a new trial. The photographer whose photo was copied in the creation of the tattoo failed to convince judge Dale S Fischer that there were grounds to overturn the jury’s decision on similarity and fair use.
“The standard for overturning a jury verdict is ‘very high’”, Fischer writes in her new judgement, adding that photographer Jeffrey B Sedlik needed to demonstrate that there was “no legally sufficient basis for a reasonable jury” to reach the conclusion reached in the original trial. And he failed to do that.
Sedlik sued celebrity tattooist Kat Von D for copyright infringement after she based a Mile Davis tattoo on a photo he took of the musician back in 1989. A jury ruled against Sedlik in January.
He took issue with various aspects of the original trial and judgement, including the jury’s decision that Von D’s tattoo - although based on his photo - was not substantially similar to it. He also objected to the conclusion that social media images showing Von D inking the Miles Davies tattoo, in which Sedlik’s photo could be seen, were covered by the fair use defence.
As to whether Von D's tattoo was substantially similar to the original photo, Sedlik honed in on what is known as the ‘intrinsic test’. Citing precedent in her new judgement, Fischer explains that that test involves considering the “similarity of expression from the standpoint of the ordinary reasonable observer”, and whether an original work and copied work are “substantially similar in ‘total concept and feel’”.
Sedlik argued that Von D had failed to present any evidence that her tattoo had a “different total concept and feel” to his photo. However, Fischer writes, “the entire point of the intrinsic test is that it is from the perspective of the ordinary person without expert assistance. The only evidence that a jury needs in order to apply the intrinsic test is the original work and the alleged infringement”.
Declining to overturn the jury’s decision on similarity, Fisher continues, “the court must draw the reasonable inference that, considering the works, the jury concluded that they had a different total concept and feel from the portrait”.
With the social media images that included Sedlik’s photo in the background, the photographer argued that “the jury’s finding of fair use is contrary to the clear weight of the evidence because the social media uses were not transformative, were commercial, and harmed the market for Sedlik’s photograph”.
He's wrong, Fisher concludes. “While the court cannot read the jurors’ minds, it is not persuaded that the clear weight of the evidence (and law) favours any of Sedlik’s positions”. As a result, “the clear weight of the evidence does not allow the court to disturb the jury’s verdict and grant a new trial”.