Kat Von D Posts of Miles Davis Tattoo Show Profit, Lawyer Argues

Celebrity tattoo artist Kat Von D didn’t charge her friend for a tattoo of jazz legend Miles Davis, but she still profited, lawyers for the photographer who shot the portrait the tattoo is based on argued Wednesday.

Von D hasn’t charged for a tattoo in over a decade, she said to a federal jury in Los Angeles, and after this trial may never tattoo again, she added. Social media for her now-shuttered shop High Voltage Tattoo has been abandoned and will be shut down completely after this case concludes, she said in questioning.

But Robert Allen—the attorney for photographer Jeffrey Sedlik who alleges his photo was used as reference without his permission—said that Von D still promotes sales of other products on her personal social media accounts and posted about the tattoo there.

The case is expected to be among the first to apply last year’s US Supreme Court ruling in Andy Warhol Foundation v. Goldsmith.

The high court found last year that artist Andy Warhol violated photographer Lynn Goldsmith’s copyright when he used her image of the musician Prince while creating a Vanity Fair magazine cover. Sedlik wrote an amicus brief in Warhol.

Justice Sonia Sotomayor wrote in the ruling that not every use that alters a work counts as transformative and fair. The degree of changes made to a work must be balanced against its commercial nature, she wrote.

Von D from the stand said she stylized the Davis tattoo by giving it a “watercolor feeling” and adding movement that would incorporate the tattoo into a future sleeve on her friend Blake Farmer’s arm.

“I’m not trying to be a camera,” she said.

Sedlik’s argument that tattoo artists must purchase licenses for photos they base tattoos on could upend the industry.

To prove that Von D profited from the tattoo, Allen, of Glaser Weil Fink Howard Jordan & Shapiro LLP, pointed to a social media post where Von D directed followers to a link where they can buy her children’s book. Another post he showed invites fans to a livestream where she would auction more than 130 pairs of shoes from her closet.

Von D responded in questioning that she doesn’t see those as advertisements, but as her sharing her personal journey.

The jury will individually weigh the tattoo and each separate social media post from Von D or her now-shuttered shop, High Voltage Tattoo, to determine whether Von D’s work was a fair use.

Matthew Neco, who does in-house general counsel work and observed the trial Wednesday, told Bloomberg Law he doesn’t think Sedlik’s argument for commerciality will be enough to refute a fair use defense.

Neco explained that in the Warhol case, the photographer prevailed by showing “that she was getting paid to license her photographs for the same purposes that the Warhol photograph was used.”

While Sedlik’s lawyers showed the jury a licensing agreement between the photographer and tattoo artist Bryan Vanegas, one instance isn’t necessarily enough to prove a market, Neco said.

Grodsky Olecki and Puritsky LLP is representing Von D. Glaser Weil Fink Howard Jordan & Shapiro LLP is representing Sedlik.

The case is Sedlik v. Drachenberg, C.D. Cal., No. 2:21-cv-01102-DSF-MRW, 1/24/24.