David Doktorman1David Doktorman is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks Matthew Makowski, Renic Sloan, Annie Kors, and the University of Chicago Law Review Online team.
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Tattooing is on the rise. No longer the taboo it once was, more and more Americans are opting to ink themselves as a mode of self-expression. Over 36% of Americans have at least one tattoo, and the industry continues to grow.
What, however, is the legal status of tattoos that are derived from copyrighted images? Are tattoo artists and their clients subject to liability for tattooing a copyrighted image, or is this practice shielded by the doctrine of fair use?
Sedlik v. Drachenberg (C.D. Cal. 2022) is the first federal court case to squarely address this question. In Sedlik, a tattoo artist, Katherine Von Drachenberg (Kat Von D), produced a tattoo for a client that was based on a copyright-protected image. In defending against a claim of copyright infringement, she asserted that the tattoo was protected as an instance of fair use. While the district court ultimately left the issue of fair use for the jury to determine, it also shied away from answering difficult questions that would clarify the nature of the tattoo form within copyright law.
In this Case Note, I will argue that the district court erred by not holding that tattoos, by virtue of their being inscribed on a human body, are inherently transformative uses that, as a matter of law, strongly support a finding of fair use. Part I will briefly provide background on the fair use doctrine. Part II will discuss the arguments raised, and the court’s resolution of them, in Sedlik. Part III will address the nature of the body as a medium of expression, arguing that it is unlike other mediums in its capacity to transform an original work into one that is uniquely tied to the individual who receives the tattoo.
I. Fair Use Doctrine
Federal copyright law is governed by The Copyright Act of 1976. In addition to delineating the various rights of copyright holders, the Act establishes an important defense to copyright infringement—fair use. Intended to allow “courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster,” the fair use doctrine shields what would otherwise be a copyright-infringing secondary work from liability. For instance, as expressed in the Copyright Act, fair uses may consist of copying “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” This list is not exhaustive, and courts have found fair uses in a variety of other contexts.
To determine whether a given use was fair, the Act requires courts to consider and weigh four statutory factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
In addressing the first factor, courts largely focus on whether the secondary work is transformative of the first work—that is, whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” The second factor inquires into the extent to which a work needs robust copyright protection by addressing how creative it is and whether it is unpublished. The third factor analyzes whether the secondary work copied more of the original work than was necessary to satisfy the secondary work’s purposes. Finally, the fourth factor looks at whether the secondary use, should it become widespread, would deleteriously impact the potential market for the copyrighted work or whether it serves a different market function.
In addition to the four statutory factors, courts are also free to consider other non-statutory factors as may be relevant to the work at issue. Moreover, there is no rigid formula for applying the fair use inquiry—the weight attributed to each of the factors may vary according to the equities presented in the case at hand. Thus, the fair use doctrine serves to strike a balance in promoting the competing policy goals of copyright law: incentivizing innovative expression by ensuring that a creator is able to control the production of their work while permitting some derivative use for the ultimate flourishing of creativity.
II. Sedlik v. Drachenberg
At the heart of the dispute in Sedlik is an iconic photograph of jazz legend Miles Davis. The portrait, which depicts a dimly lit Davis raising a finger over pursed lips, was taken by photographer Jeffrey Sedlik in 1989 and subsequently published in Jazziz Magazine. A commentary on “Miles Davis’ use of ‘negative space’ in his musical work,” the photograph garnered significant fame.
Kat Von D is a celebrity tattoo artist who, as of 2012, takes a non-transactional approach to her craft—that is, she does not receive payment for the tattoos she creates, but rather treats them as gifts. In 2017, Blake Farmer, a lighting technician with a deep love for jazz, asked Von D for a tattoo of Miles Davis based on the Sedlik portrait. Over the course of several Instagram-publicized inking sessions, Von D delivered her gift to Farmer: a shoulder tattoo of Miles Davis, finger raised over pursed lip.
Sedlik filed suit against Von D, alleging that the tattoo constituted copyright infringement. On a motion for summary judgment, Von D countered that the work was a fair use of Sedlik’s portrait, raising several notable arguments in support.
With regards to the first prong of the fair use inquiry, the purpose and character of the use, Von D stressed that the tattoo was highly transformative. Particularly, Von D contended that the tattoo bore personal significance for Farmer unrelated to the portrait’s purpose; that tattoos inherently “create a new expression, meaning, or message as a result of being permanently imprinted on a human body” because the resulting artwork is intrinsically connected with the bearer’s personality and individual meaning; and that Von D added her own interpretation to the tattoo by inking it freehand and otherwise modifying the original portrait to produce a new melancholy sentiment.
Von D also sought the court’s consideration of a non-statutory factor: “an individual’s fundamental rights to bodily integrity and personal expression.” According to Von D, tattoos are not merely pieces of art to be bought and sold, but rather implicate one’s fundamental right “to make decisions about how to express [oneself] through permanent markings on [one’s] body.” As a result, exposing individuals to copyright liability “anytime they choose to get tattoos based on copyrighted source material, display their tattooed bodies in public, or share social media posts of their tattoos” would unacceptably infringe on their Due Process rights to bodily autonomy.
The district court, however, refrained from meaningfully engaging with the unique qualities of the tattoo form. The court found a triable issue as to whether or not the tattoo was transformative because there existed visual differences between the two works—it was thus plausible that the tattoo had a new melancholy aesthetic. However, the court rejected Von D’s arguments regarding the inherent transformativeness of bodily marks on the grounds that the “subjective belief of the wearer of a tattoo as to the tattoo’s purpose is not dispositive of transformativeness.” In doing so, it erroneously conflated an inquiry into whether a tattoo objectively transforms the original image by virtue of its placement on the bodily medium with an inquiry into whether a differing subjective meaning regarding the tattoo renders it transformative. And because the court found triable issues as to both the purpose and character factor and the market effects factor, it declined to address Von D’s bodily autonomy contention.
III. The Body is Not a Canvas
In treating the body as no different than a canvas, the court in Sedlik missed an important opportunity to clarify the place that tattooing as an art form occupies within copyright law and to mitigate the legal exposure that tattoo artists and their clients face.
For a work to be transformative, it “must reasonably be perceived as embodying an entirely distinct artistic purpose, one that conveys a ‘new meaning or message’ entirely separate from its source material.” A mere medium change alone is not sufficient to render a secondary work transformative of the original. Two Second Circuit cases involving Jeff Koons are illustrative of this notion. In Rogers v. Koons, Koons faithfully recreated a photograph in sculpture form, intending it to be a commentary on modern society. Koons’s mere assertion of a different purpose did not satisfy the transformativeness inquiry; rather, the court held that the new purpose must be apparent from the work itself, which the court found was not the case. By contrast, in Blanch v. Koons, the court found that a Koons painting incorporating a copyrighted image of women’s sandals taken from a fashion magazine was transformative. Rather than “slavishly recreat[ing]” the image in a different medium, he juxtaposed it alongside other similar images to create an obvious commentary on modern society, supporting a finding that the work was transformative.
A tattoo that exactly copies another image is similar, on its face, to a mere change in medium. Like in Rogers, a previously two-dimensional image is reproduced on a three-dimensional surface. That does not in itself render the use transformative: there must be something more to lend the tattoo a distinct character and purpose.
One possibility is that, as Kat Von D pointed out, the tattoo has personal significance to the wearer. Yet, as the court in Sedlik correctly concluded, this cannot be enough either. For instance, instead of getting a tattoo, Farmer could have gone about “owning” a version of the Miles Davis image by commissioning a replica painting of it. Both the tattoo and painting are undoubtedly personally significant to Farmer, but the latter is unquestionably an infringement on the original. The personal significance of a tattoo cannot suffice, alone, because such a standard would open the door to finding any secondary use transformative insofar as every encounter with a work of art involves a personal attribution of meaning to it.
The crucial difference between the tattoo and the hypothetical painting is that bodily permanence lends a tattoo a qualitatively distinct, objective significance. As the Ninth Circuit has recognized, “a tattoo suggests that the bearer of the tattoo is highly committed to the message he is displaying: by permanently engrafting a phrase or image onto his skin, the bearer of the tattoo suggests that the phrase or image is so important to him that he has chosen to display the phrase or image every day for the remainder of his life.” In other words, a tattoo is inseparable from the person who bears it: by virtue of its permanent inscription in the skin, it inevitably expresses something about the bearer’s identity. Unlike the tattoo, Farmer’s hypothetical Miles Davis painting can have meaning independent of Farmer: someone else can possess the painting and appreciate it for completely different reasons than Farmer does. However, it is impossible to apprehend the tattoo on Farmer’s body independently of Farmer. The tattoo inevitably invokes the wearer: it calls to mind the pain they endured in being inked, the gravity of committing to a lifetime display of the image, and the significance of that image to the person’s identity. It is precisely the objective significance that every tattoo has in reflecting the wearer’s identity that renders them inherently transformative, rather than the subjective belief of the wearer. Like Koons’s juxtaposition of images in Blanch, the bodily medium combines with the image to convey a readily apparent, distinct artistic purpose.
Thus, the court in Sedlik erred by framing the issue as merely that of whether “an individual who commissions a copy of the original attaches some different personal significance to it.” By treating the human body as no different than a canvas and centering its analysis on the visual alterations that Von D introduced through her freestyle method, the court failed to consider the unique interaction between image and body that renders every tattoo transformative of the original work. Regardless of any alterations on the part of Von D, the tattoo would have had an objectively distinct character and purpose from the original: reflecting the identity of the individual who wears it.
If, ultimately, the combination of image and individual serves to produce an entirely different form of expression from the original, then tattooing as a whole should be considered transformative under the first prong of the fair use analysis as a matter of law. Adopting this rule would recognize the uniqueness of tattooing as opposed to other art forms and enable courts to avoid lengthy inquiries into the distinctions between a tattoo and the original work that it is based on. Moreover, it would mitigate the serious bodily autonomy concerns that finding an intellectual property interest in human skin would raise by making it significantly easier for tattoo artists and their clients to find shelter in fair use and avoid liability. At the least, the next court to address this question ought to engage with the nature of the tattoo as a form of bodily expression, inquiring into the history, purpose, and gravity of tattoos to shed light on what is produced when ink meets body.
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David Doktorman is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks Matthew Makowski, Renic Sloan, Annie Kors, and the University of Chicago Law Review Online team.