Category: Art

Jury finds Kat Von D tattoo does not infringe. But stand by.

Sedlik

Last Friday, a Los Angeles jury returned a verdict that celebrity tattoo artist Kat Von D did not infringe the copyright rights of photographer Jeff Sedlik when she made a tattoo that (it must be said) is strikingly similar to Sedlik’s portrait of Miles Davis. Sedlik filed a copyright infringement suit in response to Kat Von D reproducing an unlicensed copy of the photograph, tracing over printouts of the photograph, making social media posts that include the photograph, and tattooing the Miles Davis image onto the arm of Blake Farmer, a friend and colleague whom she did not charge for the tattoo.

Although this case is far from over, Kat Von D has been quoted in the press as saying, “I’m excited to be done. If we didn’t fight this, it would have done so much harm to an industry that’s already struggling.” I’ll comment below on the industry harm allegation, but Kat Von D’s celebrity status should not confuse anyone into believing that she is the party litigating on principle. Sedlik only filed suit—the first in his career—after Kat Von D refused to have a conversation in response to a letter about the use of the photograph.[1] Sedlik’s view is that artists should respect one another’s rights when it comes to preparing derivatives of each other’s works, a theme lately made clear in the outcomes in both AWF v. Warhol and in Graham and McNatt v. Richard Prince.

Not only will Sedlik appeal, but the results of last week’s trial imply errors by this court and a curious jury verdict because it is not clear that Judge Dale Fischer properly distinguished between questions of law (the court’s purview) and questions of fact (the jury’s purview). To clarify any misreporting in the press and/or social media posts, the jury did not find that the tattoo itself is fair use but found that four of the social media posts depicting Kat Von D working with Sedlik’s photograph to be fair use.[2] The tattoo itself was found by the jury to be non-infringing on the basis that it is not “substantially similar” to the photograph—a verdict that will make many a copyright watcher curious as to how, or why, this jury was instructed to consider the matter. “The question of substantial similarity should never have gone before the jury. That should have been decided as a matter of law.” Sedlik’s attorney, Robert Allen, stated. And probably with good reason.

Ordinarily, the court would separate the non-protected elements of a work (e.g., the facts of Davis’s likeness) from the expression created by the photographer (e.g., Sedlik’s explicit posing of Davis’s hand, lighting, and composition choices) and then determine whether the secondary work copies the expression in the original. This is not analysis performed by a jury. Moreover, in this instance, where there is evidence of copying (e.g., photographs of Kat Von D inking the tattoo with Sedlik’s photograph by her side), Ninth Circuit precedent holds that a substantial similarity test need not be performed at all in order to prove copying by inference. Then, of course, there is the commonsense factor that no reasonable person could look at the images side-by-side and not see that the tattoo copies the main expression in the photograph.

Sedlik photograph of Miles Davis and Kat Von D tattoo.
Sedlik portrait (1989). Kat Von D tattoo (2017)
Social post - Kat Von D copying Jeff Sedlik photo of Miles Davis
Social Media Post ~90,000 likes.

The fair use saga in this trial thus far also raises some questions, including Judge Fischer’s own fair use analysis before trial and the jury’s decision that the four social media posts are fair use. But because there is a lot to unpack, and because the jury found the tattoo itself to be non-infringing as a threshold question, I will leave fair use for a follow-up post.

Trials in the Court of Public Opinion

It is interesting that this case, Warhol, and the recent judgments for Graham and McNatt against Richard Prince all share common elements of fact and law, filtered through cultural perceptions that have little to do with either fact or law. Anecdotally, I would say that sympathies broke almost evenly between Lynn Goldsmith and the late Andy Warhol, both inside and outside the art community. Richard Prince does not earn much sympathy outside certain art salons, and that’s partly because appropriations like “New Portraits” are seen as lazy and uninspired, and because he personally makes strident declarations that piss off a lot of creators.

In a different light, Kat Von D is both popular and sympathetic, especially with her post-trial claim to be litigating on behalf of the tattoo industry, combined with her statement that this case has turned her off ever making another tattoo. I get why this will play well in the court of public opinion, but as a legal matter, the assumption that she was allowed to use Sedlik’s photograph is highly analogous to the assumptions made by Warhol and Prince, also using photographs to make unlicensed derivative works. And they both lost on questions relevant to Kat Von D’s defense.

For example, Von D is on record saying that she could have based the tattoo on any number of images of Miles Davis and didn’t need to use Sedlik’s photograph, meaning there was no justification for her unauthorized use—a concept that was at the forefront of the Warhol case. This militates against her claim that she is defending the industry in general. Although I believe Sedlik is correct on the law in this instance, Kat Von D’s allegation that licensing would cause significant harm to the tattoo industry is questionable, not least because Sedlik presented evidence that tattoo artists do license images.[3]  

As a hypothetical question, if Blake Farmer had presented Kat Von D with the Sedlik photograph and asked her to reproduce it on his arm, would it have been fatal to High Volage, and the entire industry, if she had to reply that she could ink Davis but not that specific image? To be clear, a tattoo artist is free to look at photographic portraits of a subject and then render her own drawing of that subject as a tattoo. If the tattoo artist is good, as indeed Kat Von D is, then the customer gets a quality tattoo of the subject he wants but not an expression belonging to another artist.

Perhaps most damming to Kat Von D’s claim to be defending the industry is the verdict itself. Although I expect the Ninth Circuit will be reversing a few findings in this case, any artist following this story should recognize that were this verdict to stand, it means nothing for tattoo artists in general. Just because one alleged copy is held to be non-infringing on the basis that it is not substantially similar to the plaintiff’s work, this predicts little to nothing about the next potential claim of infringement in the tattoo world, or for artists in any other media.[4]

So, Kat Von D’s declaration to have fought and won on behalf of tattoo artists everywhere is as misguided as it is prematurely announced. On the other side of the equation, Sedlik’s argument, not unlike Goldsmith, Graham, and McNatt, is that it is indeed detrimental to all artists when fellow artists working in any medium copy their work as if it is simply there to be taken. There will be more to say about this case. Stand by.

[1] Sedlik Complaint (Document 1).

[2] Redacted Verdict Form (Document 217).

[3] For example, tattoo “flash” includes images that are licensed.

[4] Also, I wouldn’t expect the same result in, say, a New York court.

Photo source by: korobskyph

Richard Prince “New Portraits” Show Was a Big Fair Use Error

Yesterday, New York federal judge Sidney Stein ruled that Richard Prince, one of the most famous appropriation artists in the world, infringed the copyright rights of photographers Donald Graham and Eric McNatt by using their works in the controversial “New Portraits” series. Prince and his co-defendant, gallery owner Lawrence Gagosian, are ordered to pay Graham and McNatt five times the sale price of Prince’s infringing canvases, plus unspecified expenses. Further, Prince is “enjoined from reproducing, modifying, preparing derivative works from, displaying publicly, selling, offering to sell, or otherwise distributing the” photographs belonging to Graham and McNatt.

The “New Portraits” canvasses sold for prices ranging between about $40,000 and $150,000, indicating that the combined awards will be substantially higher than maximum statutory damages in an outcome that highlights the significance of the Supreme Court decision in Andy Warhol Foundation v. Lynn Goldsmith. I think it’s fair to say that the over-expansive interpretation of “transformativeness” under the fair use factor one analysis is now settled, and independent creators—perhaps especially those who are not celebrities—will benefit as a result.

The “New Portraits” series stirred outrage in the Fall of 2014, when Prince and New York’s Madison Gallery first exhibited the 5’ x 6’ canvasses, the hearts of which were made by copying images that both amateurs and professionals had posted to Instagram. Subsequently, the show moved to the Gagosian Gallery, where the “Instagram series” continued to make headlines with the Prince canvasses selling to collectors for prices many found shocking considering that nearly the entire work being sold was somebody else’s photograph.

Opinions vary about the “New Portraits” series as an artistic statement, but the question of copyright infringement vs. fair use became clearer on May 11, 2023, when Judge Stein denied Prince’s motion for summary judgment (MSJ), and then the matter became even sharper about a week later with the Warhol decision. As the district court stated in May:

A close comparison reveals that Prince enlarged the images when he printed them onto the canvases, cropped portions of the photographs, added the Instagram frame, and included his own comments. But these alterations do not begin to approach those found to be transformative as a matter of law by the Second Circuit.

Even before Warhol, the district court found unpersuasive Prince’s shifting theories as to why his use was transformative. Arguing at the outset that the purpose of “New Portraits” was just “art and fun,” Prince later tried to hone his defense, averring that the series was a comment about social media and culture. Indeed, that commentary was present in the show—I said as much when the story was new—but that kind of commentary does not make the uses at issue fair uses.

As the district court stated in denying Prince’s MSJ, and then SCOTUS affirmed resoundingly in Warhol, the use of a protected work must express some “critical bearing” on the work used. With that clear finding in a Supreme Court case so obviously analogous to the “New Portraits” case, Prince could not have expected to prevail had he proceeded to trial. His canvasses titled Portrait of Rastajay 92 and Portrait of Kim Gordon express no comment of any kind about Graham’s Rastafarian Smoking a Joint or McNatt’s Kim Gordon 1 respectively.

“Phony fraud photographers keep mooching me. Why? I changed the game.”

– Tweet by Richard Prince, 2017 –

Photographers everywhere will celebrate this outcome, not only as a validation of their copyright rights, but also because Richard Prince himself is hardly modest about his appropriations or his presumed right to make them. Amid a 2016 tweet storm over the use of Graham’s photograph, Prince wrote defiantly:  “U want fame? Take mine. Only thing that counts is good art. All the everything else is bullshit.” To this, an art critic friend Jerry Saltz added, “Amen. These litigious ‘artists’ ‘photographers’ are so middle-class conservative it shivers the timbers. Neo-know-nothings.” Well, timbers shivered, I guess. Turns out that knowing nothing about fair use can be costly.

On that point, it is highly significant that this case does not end in a confidential settlement, in which the plaintiffs would ordinarily receive more money. According to plaintiff’s attorney David Marriott of Cravath, Swaine & Moore, Graham and McNatt both wanted a public ruling by the court to send a message to the creative community that what Prince had done was categorically not allowed under the fair use exception.

Graham’s “Untimely” Registration

Of note, Donald Graham’s resolution in this case is another example of the importance of timely registration with the U.S. Copyright Office. At the time Prince first exhibited Rastafarian Smoking a Joint, the photograph, created in 1996, was not registered. This could have barred Graham a path to federal litigation, or at least deny him access to statutory damages, which would require that he prove actual damages (i.e., loss of income). Graham registered the photograph in October after the Madison show went up that September. That was too late to effectively litigate the original infringement, but Prince and Gagosian subsequently made infringing use of Rastafarian by producing a billboard and art book, which together violated Graham’s rights of reproduction, display, and distribution.

Warhol Reins in Prince

As discussed in other posts, there are aspects of the Warhol case that remain food for thought, if not litigation—namely the unanswered, substantial similarity question as to whether Warhol copied the protectable expression in the Goldsmith photograph. But the importance of that decision was that it resharpened the contours of the transformative consideration after many years in which defendants have tried to present vague and overbroad definitions that would deprive the fair use doctrine of all meaning.

Richard Prince’s attempt to fit the “New Portraits” project into a transformative finding was a classic and high-profile example of pushing the boundary of the fair use doctrine beyond reason. And it is hard to miss the cultural significance of the Court’s posthumous check on Andy Warhol ultimately tempering the hubris of Richard Prince. Both artists benefitted substantially from the metaphysics of merely attaching their names to works, including creative expressions they did not really make. As such, the judgment in Graham and McNatt’s favor is a satisfying punctuation to this saga worthy of a toast. Cheers!

Fraud in Music Streaming on Legit Platforms

By now, many people who pay attention to artists’ rights have read the David Segal New York Times story published on January 13 about the amateur folk duo Bad Dog discovering their songs on major streaming platforms, but with different titles and attributed to a different creator. In what should be a surprise to nobody, it is easy to game the music streaming system and siphon from the revenue pool, even if you’ve never composed or recorded a song in your life. It’s a classic case of The Internet Giveth, and The Internet Taketh Away—because many DIY tools promoted to help new artists launch careers can be used by bad actors engaging in fraud.

“David Post and Craig Blackwell have been devoted amateurs for decades, and they’re long past dreams of tours and limos,” Segal begins. Post and Blackwell are, oddly enough, both D.C. attorneys—and cyberlaw and copyright law attorneys to boot. Although they were more interested in regaining control of their music than the revenue, their difficulties point to the fact that control is everything, especially if the artist does care about revenue.

The problem lies in the fact that anybody can create an account with a music publisher/distributor, rename and reattribute a bunch of pirated tracks, and then upload the songs to multiple platforms to hijack the revenue that belongs to the real artists. Based on the Segal article, it seems that not all publisher/distributors are equal when it comes to verifying authorship or ownership of the tracks. The article cites the service called Level used in the Bad Dog incident, and I cannot comment on the specific anti-fraud efforts of all these services.

Naturally, this scam won’t work with mega hits for a variety of reasons, but for a niche indie like Bad Dog—or more critically for the new artist who is trying to start a music career—songs that are relatively obscure make a perfect target. The scammer won’t earn much from a small heist of songs, but at scale, the dividends can obviously provide sufficient passive income to make the “effort” worthwhile. I recommend the NYT article for a full account, but two segments struck me as deserving of comment—one editorial, and one semi-mercenary.

Citing these segments out of order, first is a comment by David Post, referring to the evolution of the Digital Millennium Copyright Act (DMCA) and the appearance of Napster. “In 1997, I don’t think people were thinking about this automated operation that just sucks up unprotected material, rejiggers it to make it unfindable and uploads to platforms where they can start monetizing it. That wasn’t on anybody’s radar.” For context, Post alludes earlier in the article to his own copyright skepticism, which echoes views many would describe as “copyleft.” But this was on nobody’s radar?

Okay, maybe this exact method of scamming was not envisioned in 1997, but it hardly takes a leap of imagination to see the progress from illegal P2P to legal downloads in tandem with illegal downloads, followed by legal streaming in tandem with illegal streaming. In fact, it doesn’t take any imagination because copyright piracy for profit has been a reality for about 30 years, and there are few systems on the internet that cannot be gamed—especially if the legit platform operator lacks an incentive (i.e., is shielded from liability) to remove scammers. Also, the nature of Bad Dog’s problem did not suddenly appear in late 2023. For instance, I wrote about fake Bob Seger and music tracks owned by Spotify in 2017, which can be seen as a prelude to the kind of scam at work in this instance.

So, if Post is suggesting the DMCA needs overhaul to address workarounds to notice-and-takedown, I welcome him to the cause because professional creators have been shouting into a hurricane for at least 20 years about the near uselessness of the provision as a viable remedy to piracy. Given Post and Blackwell’s day jobs, I do wonder whether they only just discovered the issue the moment it affected their music, but in any case, the DMCA brings me to the other quote from the article that I want to highlight:

To retrieve their songs, Mr. Post and Mr. Blackwell sent out what are called takedown notices, or formal requests to remove pirated music, to a bunch of different sites. The band members used their SoundCloud page to demonstrate that their recordings predated all the uploads on the streaming platforms.

As stated, the DMCA takedown provision is middling at best. Segal reports that Amazon and YouTube removed the pirated tracks quickly, but Apple and Spotify did not. What struck me about the above paragraph, though, is the duo’s use of their SoundCloud page to prove priority and ownership of the work, which is kind of a digital-age version of mailing a copy to oneself—a.k.a. the “poor man’s copyright,” which is meaningless as a mode of legal protection. That brings me to the slightly mercenary point I wanted to make that the musical artist in this same position would find it both easier, and possibly more effective, to send the Copyright Office registration numbers associated with the works that should be removed by DMCA takedown.

One aspect of a registration is that, by operation of law, it is prima facie evidence of ownership. Walk into federal court with those registration certificates, and the burden is on the opposite party to prove that you’re not the owner of the work. In fact, without registration, you can’t walk into a court with an infringement claim, but with regard to a DMCA takedown—especially sent to one of the major platforms—the registration is literally a government seal establishing ownership of the work. It doesn’t guarantee that every platform will expeditiously comply with a takedown request, but it does give them a good reason to do so.

Further (and this is the mercenary part) because I am a passionate advocate for the rights of independent creators, I highlight this incident as the co-founder of a software business called RightsClick. A suite of tools designed to make copyright management easy for the entrepreneurial creator, the app facilitates fast, simple registration that simultaneously builds a database of Titles with their associated registration numbers. Thus, the indie musician in the same position as Mad Dog could look up those numbers in about two minutes and include them in a DMCA notice. Again, not a guarantee of compliance by the platform, but a stronger incentive. Including registration numbers is, after all, what the attorneys prefer to do when they send takedown notices.

I hope readers will forgive the plug for RightsClick in this instance. I generally keep IOM commentary and that venture separate, but this story seemed like a good moment to don both hats. Regardless, the point worth emphasizing is that indie artists should register their work with the Copyright Office. No creator should ever be required to prove they own the work requested for takedown—the provision is already subject to penalties of perjury—but to the extent the platforms stall or play games in this regard, a registration number is a lot better than any other evidence one might otherwise provide.

 

UPDATE/CORRECTION:  Thanks to a representative of Bad Dog, who wrote to tell me that the duo did file a registration application for the album The Jukebox of Regret very soon after discovering the music had been pirated. This same source also states that the music was pirated within one week of publication to SoundCloud, hence the immediate use of that information to show priority and ownership. Based on this information, I wish to correct any implication that Post and Blackwell completely ignored copyright registration, though I would encourage indie artists to register before distributing work to the market. This story proves how quickly your work is likely to be pirated.