9th Circuit weighs tattoo copyright dispute between Kat Von D and photographer

A 9th U.S. Circuit Court of Appeals panel considered arguments Monday in a lawsuit between celebrity tattoo artist Katherine Von Drachenberg and a photographer who accused her of infringing his copyright by using his 1989 photo to create a tattoo.

William F. Patry, an attorney with Quinn Emanuel Urquhart & Sullivan LLP who represents photographer Jeffrey Sedlik, argued that Von Drachenberg, known as Kat Von D, copied the photo of jazz musician Miles Davis without getting a license and that the jury's conclusion was unreasonable.

"The old cliche that a picture is worth 10,000 words applies in this case," Patry said.

But Allen B. Grodsky, an attorney with Leech Tishman Nelson Hardiman who represents Von Drachenberg, said Patry was asking the 9th Circuit to ignore precedent on whether works are substantially similar.

"The 9th Circuit has said over and over that you should not second-guess the jury's application of the intrinsic test," he told the panel.

But 9th Circuit Judge Anthony D. Johnstone questioned whether the panel could review the jury verdict in Von Drachenberg's favor.

"Isn't it essentially beyond our review?" he asked. "We're dealing with a different record after trial" as opposed to whether Senior U.S. District Judge Dale S. Fischer of Los Angeles should have ruled for Sedlik on summary judgment.

Patry said the jury was improperly instructed and said the case could be remanded for a new trial.

He cited an amicus brief by three tattoo artists who supported Sedlik. "But if this tattoo is not copyright infringement, then no tattoo is," Matthew Hersh, an attorney with Mestaz Law, wrote.

9th Circuit Judge Kim McLane Wardlaw seemed uncomfortable with a victory for Von Drachenberg. "I think what we're all struggling with here is that we look at it and say it's the same photograph yet through all these machinations, the jury decided it's not substantially similar."

Grodsky disagreed. "She traced it and created that sketch," he said. "She made decisions about the hair, about the shading and the clothing, which isn't the same."

Johnstone said he was concerned that "we are leaving it in a place where the question of copyright infringement is unreviewable" under the intrinsic test.

"I hear your concerns, but that's the test," Grodsky responded. Sedlik v. Von Drachenberg et al., 24-3367 (9th Circ., filed May 29, 2024).

Mark Lezama, a partner with Knobbe Martens who is not involved in the case, wrote in an email that it is unlikely that the 9th Circuit panel will reach the interesting question of whether Von Drachenberg's tattoo is a fair use of Sedlik's photo under copyright law.

"It's a strange place to be in when you're asking for a reversal because of a denial of summary judgment when you've gone to trial," he added in a phone interview.