Does Tattooing a Photograph Count as Copyright Infringement? How the Kat Von D Tattoo Case Redefined Copyright Law for Body Art

Introduction

The collision of tattoo artistry and copyright law reached a critical point in the case of Kat Von D vs. Jeff Sedlik[1], a legal battle that tested whether reproducing a copyrighted photograph as a tattoo constitutes Copyright infringement.

This dispute not only examined the technicalities of copyright law but also probed deeper philosophical questions about artistic transformation, the commercialization of social media, and the unique status of body art.

Its implications continue to seep through creative industries, establishing tentative guidelines for an art form that operates at the intersection of personal expression and intellectual property.

The Photograph at the Heart of the Dispute

Jeff Sedlik’s portrait of Miles Davis captured the jazz legend, his face etched with intensity under dramatic stage lighting.

This photograph became emblematic of Davis’s later career, licensed for album covers, posters, and cultural memorabilia. Sedlik maintained strict control over reproductions, never authorizing adaptations for tattoos. When Kat Von D inked a client with a tattoo closely mirroring this image, she started off a legal fight by sharing photos of the work to her millions of social media followers.

Sedlik’s  lawsuit alleged that Von D’s tattoo and its online promotion violated his exclusive rights[2], particularly the reproduction and display rights. This set the stage for a trial that would scrutinize how copyright principles apply to an art form permanently etched into human skin.

Breaking Down the Legal Arguments. 

Sedlik’s legal team employed a two-pronged strategy, alleging both direct and contributory infringement. Direct infringement in copyright law occurs when a person, without authorization, reproduces, distributes, displays, performs, or prepares derivative works based on a copyrighted work.[3] Direct infringement focused on the tattoo’s alleged replication of protectable elements from the photograph, the specific angle of Davis’s face, the interplay of shadows across his forehead, and the distinctive trumpet positioning. To prove substantial similarity, they presented side-by-side comparisons highlighting overlapping compositional elements. The contributory infringement claim targeted Von D’s social media posts, arguing they served as advertisements that commercially exploited Sedlik’s work without compensation.

Contributory infringement is based on a connection to the infringing activity. A party can be found liable for contributory infringement when that party knows of the infringing activity and induces, causes or materially contributes to it.[4]

Von D’s defense hinged on the fair use doctrine’s four factors. Fair use is a legal doctrine that allows limited use of copyrighted material without permission, based on four factors:

1. The purpose and character of the use (such as whether it is commercial or nonprofit educational, and whether it is transformative),

2. The nature of the copyrighted work (with factual works more likely to favor fair use than creative ones),

3. The amount and substantiality of the portion used (using smaller or less significant parts favors fair use),

4. The effect of the use on the potential market for or value of the original work (uses that do not harm the market for the original work are more likely to be considered fair use)[5]

Her legal team emphasized the tattoo’s transformative nature, arguing that her signature shading techniques and the medium’s physical dimensionality created new artistic meaning.

They contrasted the photograph’s flat, two-dimensional quality with the tattoo’s dynamic interaction with body contours and changing skin textures. Regarding commercial impact, Von D’s lawyers noted Sedlik had never licensed his work for tattoos, making market harm speculation rather than demonstrable fact.

The Court’s  Decision

The jury delivered a unanimous verdict in January 2024 favoring Von D on all counts. Their determination that the tattoo lacked substantial similarity surprised many legal observers, suggesting that medium conversion alone – from photograph to tattoo – could sufficiently alter a work’s protectable elements.

The fair use finding proved equally consequential, with jurors apparently persuaded by testimony about tattoo artistry’s unique technical constraints. When recreating photographs, artists must simplify details to ensure ink longevity, a process the defense framed as inherently transformative.

The social media component proved particularly novel. Whereas courts have traditionally treated online posts as publication equivalents, this jury distinguished between promotional content and direct commercial exploitation. By accepting that Von D’s posts primarily showcased artistic skill rather than the specific Davis image, they set a precedent that could insulate most tattoo artists’ social media activity from infringement claims.

Comparative Legal Landscape

This case diverges from previous tattoo-related rulings like Solid Oak Sketches, LLC v. 2K Games[6], where video game depictions of tattoos were deemed de minimis. Unlike video game avatars, Von D’s tattoo constituted a full-scale reproduction, yet still avoided infringement liability.

The outcome more closely aligns with Leigh v. Warner Bros,[7] where a Georgia court permitted tattoo depictions in films, prioritizing First Amendment protections. However, Von D’s case breaks new ground by addressing physical rather than digital/media reproductions.

Internationally, the verdict contrasts with the EU’s approach under Article 17 of the Copyright Directive, which holds online platforms directly liable for user-uploaded infringing content. Had Von D’s posts occurred in Europe, Instagram might have faced secondary liability regardless of the tattoo’s legality.

Ethical Considerations and Creative Rights

Beyond legal technicalities, the case exposes unresolved ethical issues. Tattoo artists frequently recreate copyrighted images for clients, from Disney characters to sports logos, typically without licenses. The verdict tacitly endorses this practice, provided the execution demonstrates sufficient artistic reinterpretation. This creates precarious terrain for copyright holders, who must now weigh the cost-benefit of pursuing tattoo artists against potential public relations backlash.

Conversely, the ruling empowers tattoo practitioners to confidently reference pop culture imagery, a mainstay of their industry. As celebrity tattoo artist Dr. Woo noted in trial testimony, “Tattooing exists in conversation with existing visual culture, it’s inherently referential.” The decision preserves this cultural dialogue while granting limited protection to source material creators.

Ugandan Copyright Law and Body Art

Uganda's Copyright and Neighbouring Rights Act protects "artistic works," which could theoretically encompass tattoos under Section 2's broad definition. However, no Ugandan court has yet ruled on tattoo copyrightability. The Act’s human-centric authorship requirements (Section 5) mirror challenges seen globally: if a tattoo replicates a photograph, the original photographer retains copyright, but enforcement remains untested for body art.[8]

Traditional Tattoo Motifs and Cultural Heritage

While Uganda’s indigenous tattoo traditions are less documented than Indonesia’s Dayak examples[9]The Copyright Act protects "expressions of folklore." This could theoretically safeguard traditional Ankole or Karamojong body markings if formally recognized as cultural heritage. However, no such protections have been implemented, leaving communal designs vulnerable to commercialization without benefit-sharing agreements

Enforcement Realities and Digital Challenges

Uganda’s intellectual property enforcement faces resource constraints, making tattoo copyright disputes low priority. Social media’s role in promoting tattoo artistry and a key factor in the Von D case, is amplified in Uganda’s growing digital economy. However, limited legal awareness among artists increases infringement risks when replicating protected images like sports logos or album artwork

 A Temporary Resolution in a Growing Debate

While providing immediate clarity for tattoo artists, the Von D vs. Sedlik ruling represents merely one chapter in the ongoing negotiation between copyright protection and artistic freedom.

As augmented reality tattoos emerge and biometric technologies enable animated skin art, these legal questions will grow increasingly complex. The case proves the urgent need for legislative bodies to modernize copyright statutes, ensuring they protect creators without stifling the collaborative nature of human creativity. Until then, the tattoo industry operates in a cautiously optimistic gray area, its practitioners both empowered and wary of the next legal challenge.

[1] Jeff Sedlik v Katherine Von Drachenberg (CD Cal, Case No 2:21-cv-01102, ongoing)

[2] 17United States Code, Section 106 (2018)

[3] Bainbridge, D. I. (2009). Intellectual Property (8th ed.). Pearson Education.; ‘Direct Infringement’ (Legal Information Institute, Cornell Law School) https://www.law.cornell.edu/wex/direct_infringement accessed 2 April 2025.

[4] Secondary Copyright Infringement’ (Copyright Alliance) https://copyrightalliance.org/education/copyright-law-explained/copyright-infringement/secondary-copyright-infringement/ accessed 2 April 2025

[5] ‘Fair Use’ (Columbia University Copyright) https://copyright.columbia.edu/basics/fair-use.html accessed 3 April 2025

[6] Solid Oak Sketches, LLC v 2K Games, 1:15-cv-08371 (SDNY 2017)

[7] Leigh v Warner Bros, 212 F. Supp. 3d 1082 (C.D. Cal. 2016)

[8] Intellectual property law and artificial intelligence in Uganda: Trending issues and future prospects https://www.semanticscholar.org/paper/43dd460b91efe42ef6a65cef6ed61d07bf9842d2

[9] Perlindungan Motif Tato Suku Dayak dalam Dimensi Hukum Hak Cipta di Indonesia https://www.semanticscholar.org/paper/d127cc6499b59082ec4458d330e8f00ab64ee045