‘I Consider This Fan Art’

Kat Von D took the witness stand at her copyright infringement trial in California on Wednesday and told jurors she’s inked thousands of tattoos based off photographs and never once sought a licensing agreement because she considers the practice “fan art.”

The artist who shot to fame on the reality shows Miami Ink and LA Ink is being sued for copyright infringement by a photographer who claims she unlawfully reproduced his “iconic” 1989 photo of jazz legend Miles Davis in both a design that she inked on her friend’s arm in 2017 and in various social media posts showcasing the tattoo.

Testifying as the fourth witness at a trial playing out in federal court in downtown Los Angeles, Von D told jurors she stopped charging for tattoos years ago and gifted the Miles Davis tattoo to her friend Blake Farmer free of charge. She said Farmer, a lighting director who worked with her on shoots for her former cosmetics line, was a big fan of Davis and supplied her with a copy of the reference photo that she used. She said the low-resolution image did not include a watermark identifying it as a copyrighted work belonging to plaintiff Jeffrey Sedlik.

Von D was adamant she has “never” obtained a license to use a photograph for reference in creating a tattoo. She said she hasn’t heard of any of her peers doing that either. “Nobody ever asks for permission,” she testified under oath. She said in her experience, the photographers who see her tattoos consider it a “compliment” when someone chooses “to carve” a version of their work “onto their skin permanently.” Von D said she never once considered it copyright infringement.

“You understand that magazines, before they can use a photograph, they have to do their due diligence. They can’t just use one without permission, right?” Sedlik’s lawyer Robert Allen asked.

“Yes, but I think there’s a difference between (a tattoo) and selling a product or a mass-produced magazine — selling thousands of units based off somebody’s artwork,” Von D replied. “I’m literally tattooing my friend with his favorite trumpet player because it means a lot to him. I made zero money off it. I’m not mass-producing anything. I think there is a big difference. It’s fan art. I consider this fan art. So, I see it as different than a corporation taking advantage of an artist. That’s not what I’m doing.”

Allen tried another approach, inquiring if Von D would feel as comfortable using a reference work that belonged to one of her peers. “Would you copy another artist’s tattoo design?” he asked.

“Sure. People do it all the time,” she testified. “Like Nicole Richie’s rosary on her ankle, Britney Spears’ cross on her stomach… Pam Anderson’s arm band. Those are all iconic celebrity tattoos that so many people want. They’re paying homage. It’s fan art. That’s what tattooing is.” Von D said even if she tried, she could never recreate an image perfectly in a tattoo. And she doesn’t try, the tattoo artist said, “I do my own rendition.”

Allen walked Von D through a series of posts on her social media accounts where she promoted commercial endeavors including her cosmetics line, books, and shoe designs. Jurors will have to decide if Von D’s posts about the Davis tattoo, which was posted on the same social media accounts, were used to burnish her brand and further her economic interests.

“I don’t see this as an advertisement,” she said of a September 2022 post about a children’s book she was publishing. “You and I can differ on what we think advertising is.”

Sedlik was the first witness at the trial that started Tuesday. He told jurors he took three years to plan the photo session where he ultimately created the image at the center of the dispute. Sedlik said he visited Davis at his home in Malibu and built a makeshift photo studio from scratch in the yard using aluminum framing and sail cloth. He personally positioned Davis’ fingers so he looked like he was making a “shhh” sound, he said.

“I knew he played quietly to get audiences to lean in and relish every note,” Sedlik told jurors Tuesday, explaining how he arrived at the gesture. He said he also “went in and placed his fingers exactly in that arc to represent musical notation,” adding, “I was building subliminal things in.”

A professional photographer and adjunct college professor, Sedlik said he makes much of his living from licensing his work. He actively defends against copyright infringement and reached out to Von D after her social media posts caught his attention in 2018, he said. When he got no response, Sedlik said he filed his lawsuit in February 2021.

In her testimony Wednesday, Von D said she only used Sedlik’s photograph as a jumping off point. She admitted she put it on a light box and made a stencil from it that she transferred to Farmer’s arm for “mapping” purposes. From there, she did all the shading “freehand” as she transformed the work into something new, she said.

“I did a bunch of texture and movement around it that is not included in the original photo,” she testified, explaining that she also drew inspiration from the cover art on Davis’ 1969 studio album Bitches Brew. “I was trying to bring that in from the album artwork, to bring some of that movement in.” She agreed the finger arrangement, posing, and perspective of her tattoo mirrored Sedlik’s photo, but she said her shading added new shadows and highlights. “I did my own interpretation of the lighting. I’m not a copy machine,” she quipped.

“I think your tattoo work is excellent, but that’s not why we’re here,” Sedlik’s attorney said.

Von D repeatedly referenced Davis’ album artwork, telling jurors that her plan with Farmer was to build the initial portrait into a larger tattoo. “Instead of recreating the hair as it was in the photograph, I did my own version where it looked like smoke and negative space. That was going to lead into the album artwork,” she said on the witness stand.

When Allen again accused Von D of unlawfully copying the photo, she pushed back. “I did my interpretation of the photo, with my adjustments to it,” she persisted. “The hairline is different because it’s my interpretation of telling the story of this artist that meant so much to (Farmer). I was using the artwork that he was inspired by. Tattooing is storytelling too, just like photography.”

In his complaint, Sedlik said he deserves up to $150,000 in statutory damages, as well as legal fees. The jurors hearing the case will have to decide whether Von D’s reproduction is protected by the “fair use” doctrine that allows limited use of copyrighted material without permission. Artistic representations of copyrighted work can be protected by fair use if they “transform” the work into something new, such as a parody, critique, or news report. The doctrine was the subject of a controversial U.S. Supreme Court decision last year that was largely interpreted as an edict making it harder to prove fair use. In that decision, the justices ruled that Andy Warhol’s painting of superstar musician Prince violated the copyright of the Lynn Goldsmith photo it was based on. After the Warhol ruling, the judge now presiding over Sedlik’s case allowed it to proceed over Von D’s objections and claims of fair use.

Sedlik and his lawyers rested their case Wedneday. Testimony is expected to resume Thursday with closing arguments tentatively set for Friday.