The case went to trial and the tattoo artist won: "Kat Von D Wins Copyright Trial Over Miles Davis Tattoo/The photographer who took the portrait of the jazz artist Miles Davis, which inspired the tattoo, had filed a lawsuit based on copyright infringement" (NYT).
Notice that there's a copyright question about the tattoo itself and about the photograph posted on Instagram (showing the tattoo and a copy of the original photograph). I read the NYT article and I still don't understand why the photographer lost.
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34 comments:
Motion for new trial should be granted.
Tattoo vandal; not tattoo artist.
For someone with a BFA from the University of Michigan, I’m surprised.
LA jury.
Fair use doctrine. Rather obviously the image isn’t being mass produced for sale. Isn’t being displayed in a gallery or museum claiming to be the artist’s work. And the image used is a copy of the artist’s work to begin with. If it’s a photograph, a reproduction, then there’s a case against the company or person who reproduced it. If it’s from a newspaper or magazine, then it amplifies the fair use doctrine.
Althouse said...
Notice that there's a copyright question about the tattoo itself and about the photograph posted on Instagram (showing the tattoo and a copy of the original photograph).
"Oh yeah, well I'm gonna get a tattoo of a butt that has a butt-shaped tattoo on it. And I'm gonna get it right on my butt!"
Really lame to sue someone over a tattoo of a photograph of a famous person.
The tattoo is in color. That’s enough to make it different for a jury with common sense.
Miles Davis has been dead for 30 years. He obviously doesn’t give a shit.
Sedlik said the case had "nothing to do with tattoos". I don't know if this was refuted in court, but it should be. His work is a 2D photo. A body is a 3D canvas. The dialogue between the ink artist and the person is part of the creative process; not only what art is going on the body, but where and how the contours of that area will change the art. The defense has everything to do with tattoos.
If she put the copyright symbol aside the tat, would she be in the okay?
https://www.shutterstock.com/shutterstock/photos/654664078/display_1500/stock-vector-copyright-symbol-isolated-on-transparent-background-black-symbol-for-your-design-vector-654664078.jpg
Kat Von D can violate me anytime…
Maybe because it was a one-time work for hire?
Seems significantly transformative.
I'm a little puzzled. Someone took a photo of miles davis. So someone took that photo and did a tattoo. No one could see that tattoo and go "hey, thats X's photo of miles davis" instead they'd go "That's miles davis".
Can I take a picture of Joe Bidens face and then sue everyone who makes a print of Joe Biden's face? No. I realize in this case the tattoo artist is using the photo as a guide, but is still not a photo, its a tattoo of a person.
And the only way you can see the Davis tattoo is see someone's arm that got the tattoo. No one pays for that.
The photographer lost because of a common-sense decision by the jury.
"I read the NYT article and I still don't understand why the photographer lost."
That is probably as close as you will ever come to getting accurate information from an article in the NYT.
I think the idea is that the tattoo artist's appropriation for that one client was extremely limited and that she didn't make money selling the images off Instagram. In contrast with the Goldsmith case, she had a contractual agreement over the use of her images and that was violated. Furthermore, suing tattoo artists over a one time use of a photograph would set an impossible precedent. When there is such a limited use of an image by a tattoo artist there is no motivation to pursue the potentially millions of minor infringements by tattoo industry.
Tattoos are the worst cultural development of the last 20 years; especially on women.
Yes. Transformative.
The jury verdict seems clearly wrong to me. Fair use turns on how much of the image was used and why, not how many copies were made, and she used the whole image. She also didn't use it for criticism, education, or parody; she just made a copy. The tattoo recipient didn't pay her, which is the thin thread on which the verdict could be upheld, but she obviously used the image for advertising for her business.
This is no different from putting the photo on a T-shirt, or a shower curtain, or a coaster. The Supreme Court just ruled against Andy Warhol's estate on almost precisely this issue.
Thank God we solved all the other problems in American life so we can focus on what's really important.
I read the judge's summary judgement ruling, which asserts:
While the two works share some obvious similarities, it does not take an expert to identify differences in the composition and selection and arrangement of the unprotectible features – such as the light and shading on Davis’s face, the hairline and flowing hair on Davis’s head, and background – that a reasonable jury could find to be more than de minimis.
This text appears shortly after a reproduction of both the original image and the tattoo copy, in which the purported differences the judge identifies are not at all obvious. I mean, the photo of the tattoo looks different, sure, but it's distorted around a person's arm.
Anyhow, the judge laid out what facts the jury could find if they wanted to let the tattoo artist win, and it sounds like on the question of "substantial similarity," that's exactly what they did. Although in substance, the legal test might not really be what was in their heads. From Rolling Stone:
Four jurors spoke to Rolling Stone as they left the courthouse, saying they carefully reviewed their instructions but reached agreement quickly. “It just seemed really obvious. The verdict was easy,” one woman said. “One tattoo on a person’s skin is not like selling a painting.”
So it sounds like this juror, at least, was hung up on the medium rather than the selection and arrangement of features of the original work. But juries can do what they like -- that's the protection they offer us against the terrible machinery of the law.
I think the photographer lost because a tattoo (or a sketch or a painting) isn’t a copy of the photograph. It is a new work based on a photograph. Furthermore, doesn’t the cause of action require distribution? I’m not sure how tattooing someone would count as distribution anymore than a hand drawn sketch of a famous photograph would.
what is name of photographer? BarbraStreisand
Why don't we know who owns the rights to the photo? The artist or the magazine? Doesn't that matter? Heck, it's the Times.
I find it uncomfortable when white people name their kids or their dogs or craft their tattoos based on black performers. It feels like a weird sort of blackface, even if it's done out of admiration.
Back before cable TV programming imploded,I watched a few tattoo reality TV shows. Adaptations of commercial/copy protected art is routine, and they noted that this was not then a legal issue. With the rise of famous TV tattoo artists such as Kat Von D, I figure ambulance chasing lawyers saw deep pockets $_$ and a way to cash in.
How many people have Mickey Mouse or Disney princess tattoo? How many have a Batman/Superman/Iron Man tattoo?
For tattoos, a buyer often pays to roughly duplicate something that will stay on their body for the rest of their life, and the quality and outcome of the work is highly uncertain while executed and certainly over time. It's personalized per (1) artist skill, (2) personal skin color, (3) personal skin defects (freckles, moles, tanning, wrinkles), (4) personal adverse skin reaction to the ink, and (5) random fading and blurring over time as ink always migrates. You cannot sell it outside of perhaps a Nazi-like economy where human skin is commercially valuable, so where's the financial harm? Getting a tattoo only harms pocket book (and perhaps the health) of the person who receives the art. In a culture where transgenderism and pedophilia are near-mainstream in some sectors...maybe there will indeed be cases of selling skin art soon...
Art and removed human skin: https://en.wikipedia.org/wiki/Lampshades_made_from_human_skin
Tattoos and health risks: https://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/tattoos-and-piercings/art-20045067
Tattoos correlated with crime: https://www.sciencedirect.com/science/article/abs/pii/S0047235213001189
Tattoos correlated with drug use: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7588846/
Tattoos correlated with mental health issues: https://psychcentral.com/news/2019/01/27/people-with-tattoos-more-likely-to-also-have-mental-health-issues#1
DEI finds a way
Rolling Stone:
‘Jurors took less than three hours to unanimously decide her tattoo — as well as her planning sketch and four related social media posts — were not “substantially similar” to the copyrighted 1989 portrait of jazz legend Miles Davis at the center of the trial. The eight jurors also found that three other social media posts made to Von D’s personal and business accounts that also referenced the photo qualified as “fair use.”’
Also, “Kat Von D did this tattoo for free.”
"And the only way you can see the Davis tattoo is see someone's arm that got the tattoo. No one pays for that."
You can see the tattoo in the photograph I'm showing you and which the tattoo artist is using to publicize her services.
The photographer got access to Miles Davis and elicited an interesting expression from him. Anyone who wants to do a tattoo showing Miles Davis has to rely on a photograph someone took (or a still from video that someone took). The photographer wants to make money from the work he did.
In your view, tattoo artists can just use any source material they want because the tattoo method is inherently so transformative that it's always fair use?
Even if you answer yes, there's still the added step of the photograph, displayed on Instagram, that makes a copy of the tattoo and, in the background, the copy of the original photograph.
I would consider any painting or tattoo that resembles an existing photo a derivative work. If not, most paintings would be a copyright infringement. If I sat there and painted Niagra Falls, someone could produce a previous photo depicting the same exact thing and claim infringement.
I’m surprised you don’t understand why the photographer lost. Based on what I was taught in law school, this was a frivolous suit and should have been thrown out on summary judgment, with costs awarded to the defendant.
It’s settled law that the photographer owns the photograph, and that’s it. He does not own Miles Davis, nor the events in the picture around the photograph. The notion that the presence of a print of his photo within some other photo gives him rights to that other photo is…not the law.
It’s settled law that the photographer owns the photograph, and that’s it.
As noted above, the Supreme Court just said precisely the opposite, in ruling against Andy Warhol's estate.
"Tattoos are the worst cultural development of the last 20 years; especially on women."
Uh...tattoos have been common in human societies around the world for thousands of years.
That said, as with any fashion or manner of personal adornment, tattoos can be chosen well or badly. The generally poor aesthetic taste of most people results in too many people getting bad tattoos, or too many tattoos, or too many bad tattoos, too often on unflattering parts of the body.
But, suum cuique.
This happens all the time. There was the case of an artist who took a photo from an ad for Marlboro and blew it up larger and sold it for tons of money. The photographer sued and lost because the court ruled that the artist had noticeably changed the photo simply by making it larger.
Then there was the case of an artist who did an exact copy of a panel from a comic book but made it larger. Same result
Apparently, if you take a work of art and make an exact copy in the same size, that's copyright infringement. But if you make any major change to it, like making it bigger or recreating it in a different medium like skin, it's not copyright infringement.
Tom T. said...As noted above, the Supreme Court just said precisely the opposite, in ruling against Andy Warhol's estate.
Ehh...no. The Andy Warhol case is about monetizing a work of art. This is taking a picture of a scene in which that picture is visible. Holding that this is copyright infringement would create a situation where almost all public photography infringes on at least one, and potentially a multitude, of other works. It would destroy the medium.
From what I recall of Mr. Davis if she be white he might kick her ass before “screwing” it. He loved dem white bitches some days. Or am I misremembering the fellow’s quirks?
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