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Are Photographic Copyrights Being Properly Protected? – A Two-Case Examination of Fair Use

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  • Are Photographic Copyrights Being Properly Protected? – A Two-Case Examination of Fair Use

Sedlik v. Von Drachenberg

Does tattooing copyrighted photographs amount to infringement? It will be up to a jury to make that determination in the upcoming trial Sedlik v. Von Drachenberg.

The plaintiff, Mr. Jeffrey Sedlik, claims that celebrity tattoo artist Ms. Katherine Von Drachenberg, professionally known as Kat Von D, inappropriately used his photograph of legendary jazz musician Miles Davis by tattooing a depiction of said photograph onto a customer. Images of the tattoo were then uploaded to Kat Von D’s social media outlets to presumably promote her business. The June 2022 motion for summary judgement, which features images of both the photograph and the tattoo, may be found here.

The defendant, Kat Von D, claims that the tattoo constitutes fair use. To validate this assertion, Kat Von D must try to prove that the tattoo is transformative of the original photograph. For instance, she claims to have used a lightbox to trace the photo then subsequently used that outline as the basis for the tattoo. Furthermore, she claims to have added her own personal touches by shading the background of the tattoo to make it more “melancholy” rather than the pure black rectangular background as depicted in the photograph. Finally, the color schemes are different as the original photograph is blue and black while the tattoo is brown and black.

One of the most common ways to settle infringement damages is a method called disgorgement of profits whereby the sum of economic benefits of the infringer is transferred to the claimant. However, interestingly, Kat Von D did not charge her customer, Mr. Blake Farmer, for the tattoo as they had a preexisting friendship. The plaintiff, aware of this fact, contends that while Kat Von D may not have directly benefitted from use of the photograph, she “received and enjoyed indirect economic benefit in for the form of advertising, promotion, and goodwill” after sharing images of the tattoo on social media.

Indirect damages calculations are often the most complicated to compute. For example, it will have to be determined how much Kat Von D’s social media post of the tattoo, by itself, increased the value of her multi-decade long career as a high-profile tattoo artist. Additionally, it will be necessary to calculate how much future business Kat Von D generated specific to the post versus future business she undoubtedly received because of her already high-profile status as a tattoo artist and television star. In fact, when comparing her 8.4 million Instagram followers to Jeff Sedlik’s 1,235 followers (as of August 26, 2022), it is even possible that Kat Von D’s post benefitted Sedlik more than herself.

Andy Warhol Foundation v. Goldsmith

The outcome of Sedlik v. Von Drachenberg may largely be contingent upon the results of a similar fair use trial involving a photographer and the Andy Warhol Foundation, where, interestingly enough, Sedlik is an acting forensic expert for the respondent.

Andy Warhol Foundation v. Goldsmith, to be heard by the U.S. Supreme Court this October, will be yet another test of the definition of fair use of copyrighted works. The respondent in this case, photographer Ms. Lynn Goldsmith, alleges pop art legend Andy Warhol (as Warhol passed in 1987, the defendant in this case is the Andy Warhol Foundation) misused a 1981 photograph of musician Prince for ill-gotten gains. Ms. Goldsmith found herself on the losing end of the judgment in 2019, when a New York judge ruled that Andy Warhol, in his illustration, “transformed Goldsmith’s work ‘into something new and different,’” thus constituting fair use. This judgement did not last long, however, as it was overturned in 2021 by the 2nd Circuit Court of Appeals on the grounds that “the Prince Series retained the essential elements of its source material, [and] the overarching purpose and function of the two works at issue is identical.”

As the notoriety of this case has grown, the U.S. Copyright Office and various other photographic organizations have backed Ms. Goldsmith in an attempt to protect their line of work from future infringement, claiming “their livelihood depends on it.” Similarly, support in favor of the Warhol Foundation has been shown by artists such as Barbara Kruger and Robert Storr, who filed a joint amicus brief defending the right to alter others’ work and present it as one’s own. Participation and support for both sides in this case shows not only the popularity of the artistic works at hand, but also the immense impact this verdict will have on the future of fair use rights.

While the Supreme Court verdict will certainly either define or redefine fair use for the foreseeable future, the rise of the Metaverse and virtual creative mediums will likely cause need for further specification down the road. Non-Fungible Tokens (NFTs) used in the Metaverse are sure to be one of these assets at the center of disputes between original creators and spin-off artists. Just as sampling music for use in hip hop songs or using videotapes to record live TV shows helped define fair use in the past, issues arising in the Metaverse will surely help define fair use in the future.

As intellectual property expert witnesses, we have been closely monitoring the outcomes of these two cases and their effects on fair use. At the same time, we are also anticipating the future through our study of other issues arising with the development of the Metaverse and virtual creative works therein. Understanding the scope of damages to intellectual property, whether direct or indirect, is something that CONSOR has done for more than 30 years. No matter if it is intellectual property of the future or of the past, for transactional or litigation purposes, CONSOR has a successful track record in valuing and defending our clients’ intellectual property. Simply let us know how we can best serve you.