Controversial Art: Tattoos vs. Copyright Protections
- Campbell Hunter and Audrey Plzak
- Oct 28
- 7 min read
Tattoos, once wildly controversial, are now a common form of self-expression, with nearly one in three Americans having at least one tattoo. While tattoos seem both commonplace and generally accepted, the law has failed to adapt to this cultural shift, specifically copyright law. Copyright protects the direct copying of creative works, and tattoos present a complicated challenge: many tattoos intentionally replicate existing images, forcing tattoo artists to navigate both the wishes of clients and the rights of original creators. This conflict came to light in Sedlik v. Kat Von D, a high-profile dispute over a tattoo of a photograph of Miles Davis. The litigation exposes a fundamental problem; copyright law, designed for traditional media, does not easily fit art that is permanently inked on skin. Courts today use inconsistent tests for copyright infringement, seemingly to apply derivative work and fair use definitions arbitrarily, which produce outcomes that hinge more on jurors’ intuition than on coherent legal standards. The result is a patchwork of uncertainty that threatens both tattoo artists and copyright holders—and chills creative expression for millions who use their bodies as canvases. As Sedlik v. Kat Von D proceeds on appeal, courts face an urgent need to reconcile copyright’s static categories with tattoos’ living context.
Copyright Law
U.S. copyright law protects “original works of authorship fixed in a tangible medium of expression.” To establish copyright infringement, a plaintiff must show: (1) ownership of a valid copyright; and (2) the defendant’s work is “substantially similar” to the copyrighted work. When disputes arise over tattoos copied from preexisting works, such as photographs, two key doctrines come into play: derivative works and fair use.
Under copyright law a derivative work is a work based upon “one or more preexisting works,” such as translations, fictionalizations, motion pictures, and sound recordings. Copyright holders retain the exclusive right to prepare or authorize such derivatives. In theory, this could include tattooing a copyrighted image onto someone’s body. Yet, courts have rarely addressed whether translating a pre-existing artistic work into body art qualifies as a derivative work– or whether the act of tattooing adds sufficient originality to constitute a new work. Tattoos are inherently interpretive: they involve the artist’s stylistic modifications, the wearer’s body as a medium, and a deeply personal meaning. Still, to a copyright holder, the tattoo may appear as a straightforward copy. The law lacks a principled way to differentiate between these perspectives.
The fair use doctrine, codified in 17 U.S.C. § 107, allows limited use of copyrighted materials without permission based on four factors: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, and (4) effect of the use on the market for the original. Generally fair use depends on if the use is “transformative”—that is, whether it adds new meaning or message to the original. In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court narrowed the scope of transformative use, and emphasized that merely changing a work’s medium or aesthetic form does not necessarily make it transformative. This poses a serious problem for tattoo artists: while a tattoo replicated image may embody new meaning to the individual wearing it, courts may see merely an unlicensed replication of an existing image. When the fair use analysis turns on subjective assessments of transformation, outcomes become unpredictable.
The application of these two definitions enters a legal grey area when applied to tattoo art, leading to lots of uncertainty for tattoo artists and the creators of the work that tattoos are based upon. This issue came to light in the recent case of Sedlik v. Kat Von D.
The Sedlik v. Kat Von D Litigation.
While defendant Kat Von D has touted her recent jury trial victory in Sedlik v. Kat Von Drachenberg (2024) as a victory for all tattoo artists, the verdict isn’t quite the victory she claims it to be. The case arose when Von D, an infamous tattoo artist, tattooed a portrait of Miles Davis on a client upon their request in 2017. The tattoo (shown below) was copied from a copyrighted photograph taken by Jeff Sedlik in 1989. Von D did not obtain licensing consent from Sedlik, and later posted a photo of the tattoo to Instagram. Sedlik brought the suit shortly after.
The lawsuit went to a jury to determine various issues of fact under copyright law, including whether the medium of tattoo is enough to be transformative, and whether social media posts of unlicensed secondary works of copyrighted art are protected under the fair use doctrine. Specifically, the jury resolved whether or not the tattoo was “substantially similar” and whether the social media post of the tattoo infringed on Sedlik’s license. Ultimately, the jury found that: (1) the tattoo was non-infringing because the work was not “substantially similar” to Sedlik’s, despite Von D openly copying the photo in its entirety, and (2) the social media post was a permitted infringement, under the fair use doctrine.
The jury’s findings however are contradictory, and Sedlik appealed the verdict in 2024– the appeal has yet to conclude. Tattoo artists and copyright holders hope the appeal resolves the inconsistency, clarifying the factors of copyright infringement as applied to tattoos, and fair use protections for digital social media posts. Regardless, the Sedlik v. Kat Von D litigation carries substantial implications for both copyright holders and tattoo artists in the growing tech economy.
The Inconsistency of the Kat Von D Case.
The Sedlik v. Kat Von D trial exposed a major inconsistency at the heart of copyright’s application to tattoos. The contradictory result of the Kat Von D litigation undermined the logic of copyright doctrine. A fair use defense presupposes that the underlying work is otherwise infringing. In other words, a court or jury cannot simultaneously find that (1) the tattoo is non-infringing and (2) the depiction of that same tattoo is a fair use– because fair use operates only as a justification for an act that would otherwise constitute infringement.
This contradiction illustrates just how unstable the “substantial similarity” and “transformative use” standards become when applied to tattoos. If the tattoo itself was not “substantially similar” to the original photograph, there would be no infringement to excuse– making a fair use analysis unnecessary. Conversely, if the tattoo was infringing, the fair use finding for the social media post suggests that context and medium dramatically altered the legal status of the same image. The result is a doctrinal paradox: identical visual content is treated as simultaneously non-infringing and infringing-but-fair, depending solely on if it is on skin verses on a screen. Two different juries, applying the same law, could easily reach opposite conclusions.
This uncertainty generates several harms. First, it undermines predictability. Tattoo artists cannot know when incorporating a copyrighted image might expose them to liability. Second, it chills artistic expression: out of caution, artists may reject client requests for tattoos inspired by copyrighted images, and clients may avoid tattoos that are technically “copies” but are otherwise merely express personal or cultural identity. Third, it fails to protect copyright owners, whose works may be commercialized without consent or compensation, particularly when tattoos appear in social media advertisements.
The Solution
Art is too qualitatively subjective for courts to set more stringent definitions for “substantial similarity”. Even if the courts tried to clarify the test, it would be at a detriment to the progress of the arts– going against the goal of copyright law. Therefore, the changes that are most fair to both the copyright owners and tattoo artists must address the applicability of the fair use doctrine to the issues stated above.
It would be in the best interest of the courts to decide clearer objective limitations for fair use factors to address issues of predictability, creative expression, and the protection of copyright owners. This can be accomplished two ways. The first is through a legislative exemption that categorizes tattoos as presumptively non-commercial in nature unless there is substantial evidence to the contrary. The very nature of tattoos are highly specific or personal works of art that are permanently inked onto a private individual’s body so they cannot be mass produced in a way that would substantially harm the market for the original like merchandise would. As a result, a finding of infringement would be less likely. This would promote artistic expression for tattoo artists and their clientele since there would be greater weight given to the transformative nature of their work to favor fair use.
The second change that can be made is for courts to give greater weight to tattoo artists’ intent behind posting their work to social media when evaluating the purpose and commerciality of the use. This second step can support the proposed legislative exemption or stand on its own as a court-adopted interpretive tool. For example, a social media post that communicates an intent to drive in business or recreate more tattoos using the copyrighted art demonstrates bad faith and unfair use based on the intent of commercial gains. This would benefit the copyright owner by deterring tattoo artists from posting images of copyrighted works they’ve tattooed so that there’s less undue enrichment by their unlicensed use. This would also help tattoo artists predict their liability by protecting them from lawsuits over posting art without intent to profit from or infringe on the owner’s copyright licensing.
Conclusion
There is no binding precedent for cases regarding tattoos as copyright infringement, and the controversial holding in Sedlik v. Von Drachenburg is unlikely to be replicated. The modern proliferation of tattoos necessitates adaptations to copyright law and its adjudication to provide artists with much-needed clarity. By recognizing the use of copyrighted works as presumptively noncommercial and increasing the weight of artists intent behind social media sharing, the law can offer artists clearer guidance and reduce their uncertainty while also protecting copyright owners.
*The views expressed in this article do not represent the views of Santa Clara University.
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