On January 26, 2024, a federal jury in Los Angeles handed down its verdict in one of the first copyright infringement cases to grapple with fair use after the Supreme Court’s 2023 Warhol decision.¹ The trial concerned a dispute over a tattoo inked by Katherine Von Drachenberg (known as Kat Von D), and related social media posts. In the Kat Von D case, plaintiff Jeffrey Sedlik argued the tattoo and posts infringed upon his copyright in a photograph of jazz musician Miles Davis that was indisputably utilized to create the tattoo and featured in one of the posts. Emphasizing the case-specific nature of fair use, the Los Angeles jury handed down a complete defense verdict.

Fair use after Warhol

Fair use is one of the most familiar affirmative defenses to a claim of copyright infringement. To determine whether alleged copyright infringement constitutes fair use, courts generally analyze and weigh four factors:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.

Prior to the Supreme Court’s decision in Warhol, some courts evaluated the first factor by assessing whether the new work was “transformative” in the sense of adding new expression, meaning, or message. Even if the new work was an exact copy created for an explicitly commercial purpose, such a work could still be transformative and thus constitute a fair use if the copy added “expression” to the original work. Some courts went so far as to place dispositive weight on this determination in the fair use analysis: the addition of “expression” could be enough, even for explicitly commercial exact copies, to constitute fair use under the copyright laws.

The Supreme Court’s Warhol decision clarified the proper framework under this factor of the fair use analysis. Warhol holds that the mere fact that an allegedly infringing work may add new expression, meaning, or message to an original work is not, standing alone, enough to support a holding that the use is sufficiently transformative for fair use purposes. Rather, the Court held that the question of further purpose or different character is a matter of a degree. And the degree of additional expression or other difference must be weighed against other considerations, such as whether the allegedly infringing work was created for a commercial purpose. Such a commercial purpose, the Court reiterated, tends to weigh against fair use.

The Kat Von D Case

There was no dispute in the Kat Von D case that Kat Von D utilized the plaintiff’s photograph in creating the Miles Davis tattoo. Kat Von D inked the tattoo free of charge. She posted photos and videos of the tattoo in progress and in completed form, along with the original photograph taken by Sedlik in the background of some posts, on her personal and business social media accounts. Because Kat Von D did not have a license for these uses, in 2021, Sedlik sued defendants Kat Von D and her business for copyright infringement. Defending against the claims, Kat Von D argued that the tattoo was transformative to the extent it added additional expression and was therefore covered by the fair use doctrine.

In May 2022, the Court granted partial summary judgment in favor of defendants, based on the pre-Warhol standard for the first fair use factor. Using the pre-Warhol fair use framework, the Court held that because Kat Von D changed the work’s appearance from the original work, the tattoo had a purpose or meaning distinct from the original photo.

In November 2022, the Court paused the case pending the Supreme Court’s Warhol decision. After the Warhol decision, the stay was lifted and the parties each filed motions for reconsideration, asking the Court to reconsider the summary judgment ruling in light of the change in law after the Warhol ruling. The Court agreed that there was a change in the law concerning the fair use analysis, and held that defendants failed to show that the tattoo had a transformative purpose, as required by the Warhol decision. However, the Court held that the remaining fair use issues, including whether the use of the photo was commercial and the existence of a market for future use of the photo in tattoos, would be resolved by a jury.

The Kat Von D Trial Arguments

Given the above procedural history, the Kat Von D trial looked set to turn on the post-Warhol fair use framework. Sedlik, for his part, rested much of his case on the undisputed use of his image to create the tattoo. Among other things, he argued that the jury should find that these infringements were not fair use because the social media posts about the tattoo promoted Kat Von D and her studio, and therefore the tattoo and posts had a commercial purpose. Seldik also argued that Kat Von D’s use of the image impeded his right to access the market for licensing images for use in tattoos.

Kat Von D denied the existence of infringement as an initial matter, arguing that there was no showing of substantial similarity because of differences between the tattoo and the image in shading and shaping. Kat Von D further argued that even if the jury were to find the tattoo to be substantially similar and thus infringing, the tattoo and posts were protected by fair use because she did not charge for the tattoo, none of her social media posts depicting the tattoo contained any commercial promotion. Finally, Kat Von D denied the existence of any market for licensing images for use in tattoos. 

Jury Verdict

On January 26, 2024, the jury handed down its verdict. Kat Von D won a complete defense victory. The federal jury cleared Kat Von D and her studio of all claims of copyright infringement. Going further than many analysts had expected, the Los Angeles jury concluded that the tattoo was not substantially similar to the original photograph and therefore neither the tattoo nor the social media posts depicting it were infringing works. Because fair use is an affirmative defense and is reached only if the affirmative elements of infringement are shown, the jury only reached the fair use issue on the social media posts that showed Sedlik’s photo in the background. For the posts, the jury concluded that the posts were fair use because they were both sufficiently transformative under the Warhol framework and lacked a commercial purpose.

Fair Use Remains a Case-Specific Inquiry

What the Kat Von D verdict most clearly demonstrates is what the Supreme Court emphasized in Warhol: copyright infringement generally, and fair use specifically, is a case-specific inquiry that sometimes comes down to a question of degree. For Kat Von D, it was enough for the Los Angeles jury to find in her favor that her tattoo lacked commercial purpose and differed significantly from the allegedly infringed photograph. Others in different circumstances, with less differentiation between the infringed and infringing works and with more explicitly commercial purposes, might expect different results.

Footnotes

¹ Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).