The Court Rules That You Can Get Any Face Tattooed: The Kat Von D Tattoo Case

Sammi DietrichNews & Insights

On January 26, 2024, a jury in the Central District of California decided that famous tattoo artist Kat Von D did not violate US copyright law when she gifted her friend Blake Farmer a tattoo of Miles Davis.[1] Photographer Jeffrey Sedlik, who captured the image that the tattoo was based upon, filed a copyright infringement claim in February 2021 against Von D for her unauthorized use of his photo in both her work and her social media content.[2] Von D denied that her use was infringement, claiming an affirmative defense that the tattoo was a fair use of the original photo.[3] Both parties moved for summary judgement, which the District Court judge denied in favor of a jury’s analysis of whether Von D’s fair use defense was sufficient to show that she did not violate Sedlik’s copyright to his work .[4]

A defense of fair use in copyright litigation considers four factors: the purpose and nature of the defendant’s work, the nature of the plaintiff’s work, the amount and substantiality of the original work that the defendant used, and the potential market effect of the defendant’s use on the plaintiff’s ability to exploit their work.[5] In this instance, the court determined that neither the first nor fourth factor of fair use could be decided as a matter of law.[6]

To analyze the first factor, courts will often employ the transformative use test to determine whether the defendant’s new work significantly alters the original work.[7] The more transformative a work is, the less significant the other factors of fair use.[8] In this case, Von D gave the tattoo free of charge and then posted images to her social media platforms, where they gained thousands of likes but did not generate revenue.[9] Other characteristics of tattoos in general that may have been persuasive to the jury include the fact that tattoos require different skills than photography and have inherent personal meaning that is irrelevant to infringement.[10]

Although the lack of a written opinion in connection with this case has limited the public’s understanding of the specific details, [11] one point of backlash has been the speed with which the jury reached their conclusion— the decision was reached within few hours.[12] Sedlik’s lawyers maintain that the decision was rushed, and that more time and consideration spent during deliberation may have yielded a different result.[13] However, Von D’s lawyers are insistent that the quick decision evidences the case never should have come to trial in the first place.[14]

An issue that was not addressed in this case was that of the name, image, and likeness rights that may potentially be implicated when an artist tattoos a public figure’s photograph on another person. Although most often associated with student athletes, NIL rights are becoming increasingly important across entertainment industries due to the prominence of social media and the growing presence of artificial intelligence.[15] In terms of tattooing, NIL rights are especially important where the person who receives a tattoo of a recognizable person later publicizes the tattoo on social media, in commercials, or in other forms of media where the celebrity image could possibly generate profit.[16] Should this issue be raised in the future, courts may need to consider how to appropriately balance a celebrity’s right of publicity and a tattoo recipient’s freedom of expression.[17]


[1] Chloe Briggs, Of Ink and Cool Jazz: California Jury Finds For Defendants in Copyright Infringement Case, MSK (Jan. 31, 2024), https://www.msk.com/newsroom-alerts-client-alert-tattoo-copyright-infringement.

[2] Id.

[3] Id.

[4] Sedlik v. Drachenberg, No. CV 21-1102 DSF (MRWx), 2023 U.S. Dist. LEXIS 183184 (C.D. Cal. Oct. 10, 2023).

[5] Id.

[6] Id.

[7] Transformative Use and Copyright Infringement Lawsuits, Justia, https://www.justia.com/intellectual-property/copyright/fair-use/transformative-use/

[8] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

[9] Supra note 4.

[10] Thomas Holt & Kathleen Wills, The Legal Future of Tattoos: A Jury Rules Against Copyright Infringement, JD Supra (Feb. 12, 2024), https://www.jdsupra.com/legalnews/the-legal-future-of-tattoos-a-jury-5834767/.

[11] Id.

[12] Sopan Deb, Kat Von D Wins Copyright Trial Over Miles Davis Tattoo, NY Times (Jan. 31, 2024), https://www.nytimes.com/2024/01/27/arts/kat-von-d-miles-davis-tattoo-copyright-trial.html.

[13] Maia Spoto, Kat Von D Wins Copyright Case Over Miles Davis Photo (Correct), Bloomber Law (Feb. 16, 2024), https://news.bloomberglaw.com/litigation/kat-von-d-tattoo-of-miles-davis-isnt-infringement-jury-rules.

[14] Id.

[15] Ben Natter & Audrey Sparschu, The Current Status of NIL Rights and a Review of NFT Trends, Haug Partners, https://haugpartners.com/article/the-current-status-of-nil-rights-and-a-review-of-nft-trends/.

[16] Daniel Tencer, Kat Von D Wins Copyright Trial Over Miles Davis Tattoo, Music Business Worldwide (Jan. 29, 2024), https://www.musicbusinessworldwide.com/kat-von-d-wins-copyright-trial-over-miles-davis-tattoo1/#:~:text=The%20jury%20agreed%20with%20the,and%20didn’t%20infringe%20copyright.

[17] Id.