Kat Von D Testifies In Miles Davis Tattoo Trial: 'I Consider This Fan Art'

Kat Von D took the witness stand in her copyright infringement trial in California on Wednesday and told jurors that she has inked thousands of tattoos based on photographs and never once sought a license agreement because she considers the practice “fan art.”

The artist who became famous on reality shows Ink Miami and LA Ink A photographer has been sued for copyright infringement by a photographer who claims she illegally reproduced the “iconic” 1989 photo of jazz legend Miles Davis in both a 2017 drawing of her friend's hand and various social media posts showing the tattoo;

Testifying as the fourth witness in a trial playing out in federal court in downtown Los Angeles, Von D told jurors she stopped charging for tattoos years ago and gave the Miles Davis tattoo to her boyfriend Blake Farmer for free. She said Farmer, a lighting director who worked with her on shoots for her former cosmetics line, was a big fan of Davis and gave her a copy of the reference photo she used. He said the low-resolution image did not include a watermark identifying it as a copyrighted work owned by plaintiff Jeffrey Sedlik.

Von D was adamant that she “never” got permission to use a photo as reference for a tattoo. She said she hasn't heard of any of her peers doing that. “No one ever asks for permission,” he testified under oath. In her experience, photographers who see her tattoos consider it a “compliment” when someone chooses to “etch” a version of their work “permanently on their skin.” Von D said she never considered it copyright infringement.

“You understand that magazines, in order to use a photo, have to do their due diligence. They can't just use one without permission, right?' Sedlik's attorney Robert Allen asked.

“Yeah, but I think there's a difference between (a tattoo) and selling a product or a mass-produced magazine — you're selling thousands of units based on someone's artwork,” Von D replied. “I'm literally tattooing my friend with the of the trumpet player because it means a lot to him. I made zero money from it. I don't mass produce anything. I think there is a big difference. It's fan art. I consider this fan art. So I see it as different from a company exploiting an artist. That's not what I do.”

Allen tried another approach, asking if Von D would feel as comfortable using a reference work belonging to one of her peers. “Would you copy another artist's tattoo design?” asked.

“Sure. People do it all the time,” he testified. “Like Nicole Richie's rosary on her ankle, Britney Spears' cross on her stomach… Pam Anderson's arm. These are all iconic celebrity tattoos that so many people want. They're paying homage. It's fan art. That's what the tattoo is.” Von D said that even if she tried, she could never perfectly recreate an image in a tattoo. And she doesn't try, said the tattoo artist, “I do my my interpretation”.

Sedlik was the first witness in the trial, which began Tuesday. He told jurors it took him three years to plan the photo shoot where he finally created the image at the center of the controversy. Sedlik said he visited Davis at his home in Malibu and built a makeshift photography studio from scratch in the backyard using aluminum framing and sailcloth. He personally positioned Davis' fingers so it looked like he was making a “shhh” sound, he said.

“I knew he was playing quietly to make the audience lean in and enjoy every note,” Sedlik told the judges Tuesday, explaining how he arrived at the gesture. He also said he “went in and placed his fingers right on that bow to represent the musical notation,” adding: “I was subconsciously making things up inside.”

A professional photographer and college adjunct professor, Sedlik said he makes much of his living by licensing his work. He actively advocates against copyright infringement and contacted Von D after her social media posts caught his attention in 2018, he said. When he got no response, he filed his lawsuit in February 2021.

In her deposition Wednesday, Von D said she only used Sedlik's photo as a jumping-off point. He admitted placing it in a light box and making a stencil from it which he transferred to Farmer's hand for “mapping” purposes. From there, he did all the shading “freehand” as he transformed the project into something new, he said.

“I did a bunch of texture and movement around what's not in the original photo,” he testified, explaining that he also drew inspiration from Davis' 1969 studio album cover. Brew dogs. “I was trying to bring that through the album artwork, bring some of that movement.” She agreed that the finger placement, posing and perspective of her tattoo mirrored Sedlik's photo, but said her shading added new shadows and highlights. “I did my own interpretation of the lighting. I'm not a copying machine,” he quipped.

“I think your tattoo work is great, but that's not why we're here,” Sedlik's lawyer said.

Von D repeatedly referenced Davis' album artwork, telling jurors that her plan with Farmer was to build the original portrait into a larger tattoo. “Instead of recreating the hair as it was in the photo, I did my own version where it looked like smoke and negative space. That would lead to the album artwork,” he said on the witness stand.

When Allen again accused Von D of illegally copying the photo, he pushed back. “I did my interpretation of the photo, with my adjustments to it,” he insisted. “Hairline is different because it was my interpretation of telling the story of this artist that meant so much to (Farmer). I was using the artwork it was inspired by. A tattoo is also a story, just like a photograph.”

In his complaint, Sedlik said he deserves up to $150,000 in legal damages, as well as legal fees. Jurors trying the case will have to decide whether Von D's reproduction is protected by the “fair use” doctrine that allows limited use of copyrighted material without permission. Artistic representations of copyrighted works can be protected by fair use if they “transform” the work into something new, such as a parody, a review, or a news report. The doctrine was the subject of a controversial U.S. Supreme Court ruling last year, which was largely interpreted as an edict making it harder to prove fair use. In that decision, the judges ruled that Andy Warhol's painting of superstar musician Prince infringed the copyright of the Lynn Goldsmith photograph on which it was based. After Warhol's ruling, the judge now presiding over Sedlik's case allowed her to move forward over Von D's objections and fair use claims.

Sedlik and his lawyers began their case on Wednesday. Testimony is expected to continue Thursday, with closing arguments tentatively set for Friday.