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is this tattoo falling down the Warhol(e)?

California based photographer, Jeff Sedlik’s copyright infringement claim against celebrity tattoo artist Katherine von Drachenberg  (known as Kat Von D) has escalated to a jury trial before the US Supreme Court.

Jeff Sedlik initially issued the claim back in 2021 alleging Kat Von D had used his 1989 photograph of jazz singer, Miles Davis, as the basis for a tattoo without his consent. Sedlik claims this was an unfair use of his work and amounted to infringement. A US District Judge refused the claim as it ruled in favour of a summary judgment application filed by Kat Von D.

However, in light of the much-anticipated fair use ruling in respect of Andy Warhol’s use of Lynn Goldsmith’s photograph of American singer Prince, the Judge is willing to reconsider the case. In that ruling in May 2023, the judge ruled in favour of the photographer and found that Warhol’s use of the work was in fact unfair and amounted to copyright infringement.

Sedlik’s motion for the case to be reconsidered has been granted by a US District Judge who noted that the Warhol ruling changes the fair use analysis and that it would be more appropriate for a jury to determine the facts of the case. The trial is scheduled for 28 November 2023 and will be the first of its kind to decide the issue of whether copyright protection extends to tattoos.

If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.

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