Kat Von D will likely succeed in a lawsuit accusing her of copyright infringement after posting her rendition of an iconic Miles Davis photo on Instagram since the image wasn't an exact replica, according to an intellectual rights attorney who's spent years dealing with "copyright trolls."
California photographer and college professor Jeff Sedlik filed a lawsuit in February 2021 accusing Von D, born Katherine Von Drachenberg, of copyright infringement for tattooing a rendition of his Miles Davis portrait on a friend's arm and posting photos of it and her line drawings on Instagram. The March 2017 post's caption read, "Can’t believe this is the first time I’ve gotten to tattoo a portrait of #MilesDavis! [thank you, Blake for letting me tattoo you!]" and tagged Von D's business, High Voltage Tattoo.
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"She placed it on a friend," Fred Tecce, an intellectual property attorney, told Fox News. "She made some changes. It's not an exact replica."
"I can understand why Professor Sedlik is upset that his photograph, which is quite frankly a classic, maybe even iconic, was used," Tecce continued. "But I don't think that Kat Von D used it in the commercial sense."
Sedlik's photo first appeared on a 1989 magazine cover and has since become an iconic representation of the famed jazz musician that the photographer has licensed for use on clothing, posters and art prints. The photographer is suing Von D, a celebrity tattoo artist who starred on LA Ink and Miami Ink, for "unlawful and unauthorized reproductions" of his image on a client and displaying it on various social media accounts to promote her businesses and brand, according to the lawsuit.
"I think this is kind of the reality of today on social media," Tecce said. "It's a lot of commercial driving efforts. It's a lot of trying to raise clicks, raise money, but … people post on social media to be informative, to stay in the public eye, to stay as part of the public consciousness."
A district judge denied Sedlik's motion for summary judgment and partially denied Von D's, declaring there were issues of fact that required a trial, according to a May 2022 court order. The judge denied some of the plaintiff's claims and removed Von D's company KVD Inc. as a defendant and the accusation against the tattoo artist for purposeful falsification.
The judge postponed the ruling in November 2022 to wait for the Supreme Court's decision on another copyright case involving the Andy Warhol Foundation.
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Though the Supreme Court ruled in May in favor of Lynn Goldsmith, a photographer who accused the foundation of using her 1981 photos of superstar musician Prince for renditions of the images without permission, Tecce still believes Von D will win her lawsuit.
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"Some people would argue that the Warhol case … was a big change in the law," Tecce said. "I don't see this happening. I don't see there being a big matter about this because it was a photograph and she made a tattoo."
If the court rules in favor of Sedlik, the photographer could get thousands in statutory damages since he filed for copyright registration before the lawsuit was filed, or he could be awarded money damages if he lost profits, according to the intellectual property lawyer. Von D would also have to pay Sedlik's attorney fees.
"I think 99% of civil litigation ends in settlement," Tecce said. "I would not at all be surprised to see this matter settle. I think it would be in both parties' interest to resolve this matter."
The judge lifted the stay on Sedlik's suit against Von D in May, shortly after the Supreme Court ruling. It's scheduled for trial Tuesday.
