Although tattoos have existed for as long as human’s written history, legal disputes involving tattoos are a relatively new phenomenon. The case Sedlik v. Drachenberg, currently pending before the 9th Circuit, is particularly notable, as it marks the first instance of a court ruling on an artist’s use of copyrighted imagery in her tattoo art. 

More importantly, the case presents the 9th Circuit a first opportunity to interpret the fair use right in the wake of the Supreme Court’s 2023 Warhol decision. Authors Alliance has been closely monitoring circuit courts’ rulings on fair use and advocating for a proper interpretation of Warhol—including challenging the problematic fair use ruling issued by the 10th Circuit earlier this year, a decision that was later vacated in response to strong pushback from fair use advocates.

At the heart of the Sedlik v. Drachenberg legal debate are two creative professionals with very different backgrounds: 

The plaintiff in this case is Jeffery Sedlik. Sedlik is a successful professional photographer. He took a photo of the Jazz legend Miles Davis in 1989—an image that is at the focal point of the pending dispute. 

The defendant, Kat Von Drachenberg (“KVD”), is a celebrity tattoo artist. In recent years, she has shifted away from for-profit tattooing, opting instead to ink clients for free. In 2017, she freehand-tattooed Miles Davis on a client’s arm, largely drawing from the 1989 photograph captured by Sedlik.

Interestingly, neither party is new to the world of litigation. Sedlik has established a reputation for aggressive copyright enforcement—even filing a case with the Copyright Claims Board on its first day of operation. KVD, on the other hand, was sued by a former employee in 2022. 

Sedlik’s claims were straightforward—he alleges that KVD’s tattoo, as well as her social media posts documenting the process of her creating the tattoo, infringe his copyright in the Miles Davis photo.

For Sedlik to state a prima facie case of copyright infringement, he must prove that KVD had access to the Miles Davis photo (which is easy to prove in this case), and that the allegedly infringing tattoo and social media posts are substantially similar to the plaintiff’s photo. In this case, the district court left the question of substantial similarity and fair use to the jury, after refusing the motions for summary judgement on copyright infringement issues in May 2022. 

The jury returned a verdict in January 2024 that the tattoo inked by KVD and some of her social media posts are not substantially similar to Sedlik’s photo. The jury also determined that the rest of KVD’s social media posts, documenting her process of creating the tattoo in question, were fair use. In short, the jury concluded there was no copyright infringement.

On May 3rd, 2024, the district court judge denied Sedlik’s motions for judgment as a matter of law and for a new trial. Faced with the jury’s adverse decision, Sedlik argued, among other things, that the jury erred in finding no substantial similarity. The judge, however, upheld the jury’s finding that KVD’s works had a different concept and feel from Sedlik’s photo and that KVD only copied the unprotected elements of the photo. Sedlik tried to argue that the legal question of fair use should not have been left to the jury. However, the court was unpersuaded, highlighting that Sedlik had remained silent on this procedural issue until after receiving an unfavorable verdict.  

Following the ruling on his motions, Sedlik appealed, and the case is now in front of the 9th Circuit. Anticipating the far-reaching consequences for artists and authors depending on how the 9th Circuit will interpret Warhol, Authors Alliance filed an amicus brief in support of KVD.

Both Sedlik and KVD in this case argued that Warhol supported their side. Sedlik proposed a unique test, that a fair use must either target the original copyrighted work, or otherwise have a compelling justification for the use. In our amicus brief, we illustrated how that is not the correct reading of Warhol. Under Warhol, a distinct purpose is required for the first factor to tilt in favor of fair use. The Warhol Court only analyzed “targeting” and “compelling justification” because Warhol’s secondary use of the Goldsmith photo shared the exact same purpose as the photo, both for the purpose of appearing on the cover of a magazine. This is not the case with KVD’s freehand tattoo and Sedlik’s photo: they serve substantially distinct purposes.   

Authors routinely borrow from other’s copyrighted works for reporting, research, teaching, as well as to memorialize, preserve, or provide historical context. These uses by authors have historically been considered fair use, and often have purposes distinct from the copyrighted works used; but they do not necessarily “target” the works being used, nor do they have “compelling justifications” beyond the broad justification that authors are promoting the goal of copyright—”to promote the progress of science and the arts.”

In our brief, we also stressed how a successful commercial entity can nevertheless make noncommercial uses, as already demonstrated in the case of Google Books and Hachette. We also argued that social media posts are not commercial by default, just by virtue of drawing attention to the original poster. Many successful authors maintain active social media presence. The fact that authors invariably write to capture and build an audience through these sites does not automatically render their uses “commercial.” “Commerciality” under the fair use analysis has always been limited to the act of merchandising in the market, such as selling stamps, t-shirts, or mugs.

Finally, we explained to the court why copyright holders must offer concrete evidence to prove the existence, or likelihood of developing, licensing market, before they can argue a secondary use serves as “market substitute.” If we accepted Sedlik’s argument that his protected market includes everything that he’s willing to receive licensing fees for, it will all but wipe out fair use. We want authors and other creatives to continue to engage in fair use, including to document their creative processes—as KVD has done in this case in her social media posts, without being told they have to pay for each instance of use as soon as demanded by a rightsholder.