In a groundbreaking lawsuit that could have far-reaching implications for the tattoo industry, a photographer named Jeffrey Sedlik is challenging the common practice of using copyrighted images as references for tattoos. Sedlik claims that celebrity tattoo artist Kat Von D, whose legal name is Katherine Von Drachenberg, used his iconic portrait of jazz legend Miles Davis without permission, raising questions about the application of copyright protections to tattoo creations.

The case, Sedlik v. Drachenberg, is being heard in Los Angeles federal court, where Sedlik's attorney, Robert Allen, argued that the defense's argument of "everyone else is doing it" should not hold weight. Allen emphasized that the norm in the industry should not justify the unauthorized use of copyrighted material.

The lawsuit stems from a free tattoo created by Von D for a friend, which was based on Sedlik's famous photo of Miles Davis. While displaying an animation comparing Von D's tattoo to Sedlik's photograph, Allen pointed out a double-standard in the industry. Many tattoo artists claim they can copy photographs but not other tattoos, suggesting that there is an inconsistency in how copyright protections are perceived and applied within the field.

In a significant development, Judge Dale S. Fischer of the Central District of California ruled that a jury must assess the tattoo and each separate social media post individually to determine if Von D's work constitutes fair use under copyright laws. This ruling was influenced by a recent US Supreme Court decision in the case of Andy Warhol Foundation v. Goldsmith, which established that not every alteration of a work qualifies as transformative and fair use.

Justice Sonia Sotomayor, who authored the ruling, emphasized the need to balance the degree of changes made to a work against its commercial nature. Von D's posts featuring the Miles Davis tattoo on her social media page could potentially be deemed a commercial use of the image. However, Von D's lawyer, Allen Grodzky from Grodsky Olecki & Puritsky LLP, argued that the posts were not linked to ads or other products and did not promote her tattoo practice, as she is no longer accepting new clients.

One aspect that strengthens Sedlik's case is his reliance on licensing fees to support himself and his family. Sedlik's lawyers presented evidence of past licensing agreements with artists who adapted and sold his photographs, allowing him to earn substantial income. In one instance, a painter transformed Sedlik's Miles Davis portrait into a vibrant image, with Sedlik expecting to make up to $85,000 from the license.

The trial is being closely watched by professionals in the tattoo industry, as the outcome could redefine the boundaries of copyright protections for tattoos. While Von D's defense argues that the industry's norms and practices should guide the decision-making process, Sedlik's case is challenging the status quo and advocating for the recognition and protection of intellectual property in tattoo artwork.

Representing Von D is the law firm Grodsky Olecki & Puritsky, while Sedlik is being represented by Glaser Weil Fink Howard Jordan & Shapiro. As the trial continues, legal experts anticipate that its conclusion will set a precedent in determining the rights of photographers and artists in the tattoo industry.

The case, Sedlik v. Drachenberg, is being heard in the Central District of California, with the case number 2:21-cv-01102-DSF-MRW.