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| 2 minutes read

Inclusion of Unlicensed Photo in Social Post Held Fair Use

Kat Von D is a celebrity tattoo artist.  She made a tattoo for a friend based on a photograph of Miles Davis taken by photographer Jeff Sedlik, and also posted a picture of her drawing the tattoo based on the photo to her social media.  Sedlik sued, arguing that Von D's use of the photo as the basis for the tattoo was copyright infringement, and so was her reproduction of the photo in her social media post showing how she made the tattoo.   

Shockingly, the case went to trial and didn't settle.  In only two hours, the jury held for Von D and made two holdings:

  1.  The tattoo didn't infringe the copyright in the photograph because the tattoo wasn't substantially similar to the photograph.

This seems like a pretty strange decision by the jury because the two images look pretty darn similar to me, but I guess it probably goes to show that works in different mediums could make a difference in similarity in a juror's mind.  The jury seems to have agreed with Von D's argument that she could have based the tattoo on any number of images of Miles Davis and didn’t need to use Sedlik’s photograph.  The jury also may have relied on the argument that there was a difference in the shading and detail of the works.

       2. The social media post depicting the photograph was protected under the fair use                  doctrine.

This was also an interesting outcome. The jury seems to have not bought Sedlik's argument that Von D should have purchased a license to use the photo (Von D testified that has never sought an image license nor does she know of other tattoo artist doing so) and that her use could hurt the market for the photograph.  The fact that the post was arguably commercial as a promotion for her tattoo business could have also played into the decision, but instead, it seems that the jury took the social media post as non-commercial.  

This decision comes on the heels of the Supreme Court's decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.  In that case, Warhol's estate was sued for using photographer Goldsmith's picture of Prince as the basis for one of his artworks that was licensed for a magazine article regarding Prince.  The Supreme Court held that Warhol's creation and license to the magazine was not fair use, because both Warhol's licensed image and Goldsmith's original photograph served the same commercial purpose, to depict Prince on magazine covers.

I can't say that I highly recommend making a piece of art, at least in part, based upon someone else's creative work and then posting that you did it on social media. Ultimately, if you’re going to borrow elements or be inspired by existing works, there needs to be a careful analysis of the degree of similarity and a possible fair use defense.  


(Image source: Selkirk v. Von Drachenberg)