No doubt, The tattoo design itself is protected by copyright, But the tattoo industry and the public are not so well informed about the alleged theft of photographs and other artwork. In Sedlick v. Kitt．Fandi (Sedlik v. Kat Von D) In the case, Infringing work (tattoo) Copied a copyrighted photograph, When the court does a tort and fair use analysis, A lot of people are scratching their heads.

The U. S. District Court for the District of California recently conducted a preliminary fair use and material similarity analysis of the copying case. The background case is the famous photographer Jeff．Sedlick (Jeff Sedlik, plaintiff) With famous tattoo artist Kate．Fandi (Kat Von D) And company Kat Von D, Inc. and High Voltage Tattoo Inc. (defendant) Dispute between, Involving Sedlick in 1989 Miles, the legendary jazz musician．Davis (Miles Davis) Conception and creation of a photograph.

The photograph (portrait) It depicts Davis holding a finger in front of his mouth against a dark background "SHH" posture. In his testimony, Sedlick detailed at least a dozen subjective artistic decisions he made in creating the iconic image, These decisions reflect the meaning and message of his work. In addition to 1989 License the photos to "Jazziz" Out of use, Sedlick also licensed the photos to be used in paintings, illustration, T The T-shirt, magazine, film, TV program, Sculpture and advertising. Sedlick said in his deposition, He believes he licensed the portrait for tattooing.

2017 years, Fondil took a picture from Sedlick and tattooed Davis's image on Black．Farmel (Blake Farmer) On the body, Farmel was a lighting technician who worked with Fandi on the film. Farmel 6 Trumpet player since grade, I've wanted a Davis tattoo since college, Because he studied jazz in college, And identified with Davis's "Rebellious spirit" . While studying the image of the tattoo, Farmel searched Google, Found a photo of Sedlick and sent it to Fandi's assistant. Fandi also admitted to finding a copy of the photo online, Download, print and display in the store, Use it as a reference when inking a tattoo. To show Farmel the size of the tattoo and prepare it for inking, Fandi printed out the portrait and placed the print on the light box, Place tracing paper over the print, Then trace the details of the photo on the tracing paper using a pencil.

after, She made a template, Transfer it to Farmel's skin, And continue to use what it calls "Bare hand" The method of inking tattoo designs, But it would be more accurate to describe it as tracing. Fandi testified that she did not receive money from Farmel for the tattoo, Call herself 2012 Has been offering free tattoo services since 2000. Fandi's tattoo studio posted numerous photos and videos to Fandi's social media accounts. Some posts——Got tens of thousands of them "praise" ——It was accompanied by text claiming that Fandi had created the portrait, And was used to promote her services and drum up business. Sedlick initially sued, The defendant made unauthorized copies, distribute, The display and derivative use of its copyrighted works infringes its copyright.

He further asserts that, According to the United States "Digital Millennium Copyright Act (DMCA) " The first 1202 article, Fandi's claim that he created the portrait was a falsification of copyright management information. Defendant argues, Although Fandi's tattooing process might be seen as copying, But she didn't copy any of the protected elements of the portrait, So no copyright infringement. They further claim that, Tattoos can be considered fair use, Mainly because the work is transformational and non-commercial. Sedlick filed a petition for summary judgment on the claim of copyright infringement, The court eventually rejected the request, The reason is that there are substantial similarities, conversion, The triable question of commercial use and whether there is a future market for the use of portraits in tattoos.

Fandi filed both summary judgment and fair use pleas, But the court is concerned with No 1 Sum control 4 A justiciable point of dispute for a fair use factor (triable issue) On the grounds that his request was rejected. External and internal similarity is determined by the jury and indicated by the court, In order to prove infringement, Sedlick had to prove it (1) Have a valid copyright; and (2) Components of the original work are copied. The latter requires proof that the works involved are substantially similar, The court used the Ninth Circuit's 2 Part of the test to determine substantial similarity: External and internal testing. Extrinsic tests are used to compare objective similarities of specific expressive elements in a work, Distinguish between protected and unprotected material in copyrighted works. The intrinsic test considers the similarity of expression from the perspective of the ordinary rational observer. After determining that Sedlick had a valid copyright on the portrait, The court turned to outside analysis, And consider Fandi's argument, namely 2 The common similarity of a painting is an element that cannot be protected, Like what Davis has shown "SHH" posture.

finally, Court determination, Some elements, Sedlick's choice of lighting and camera angles, for example, is protected. but, Due to 2 Other elements, such as the depiction of light and shade on Davis's face or hairline, differ, The court cannot determine 2 The paintings are objectively similar, So the court held that: The question of substantive similarity is open to debate. About internal testing, Whether the ordinary observer can detect by the overall concept and feeling 2 The material similarity of the paintings is disputed. The court referred the question to the jury. Fair use analysis in determining the No 1 Sum control 4 After the justiciable point of dispute, The court denied the defendant's request for summary judgment based on the fair use defense.

In assessing fair use, Court analysis 4 A factor:

－Purpose and characteristics of use;

－Nature of copyrighted works;

－Relative to the entire copyrighted work, The number and substance of the parts used;

－The impact on the potential market for copyrighted works.

About purpose and character, The court is primarily concerned with commercial and conversion use. When analyzing transformation usage, The court agreed with the defendant's argument, That Fandi's freehand method of coloring tattoos is transformational, Because she has increased her understanding of tattoos. Fandi criterion, She added motion and smoke shadows in the background, It evokes a feeling of melancholy, The court seems to accept this subjective view, Let the jury decide whether the work is truly transformational.

On the other hand, Despite Fandi's claims of non-commercial use, But Sedlick said the defendant's social media posts were advertising, Promotion and other forms of indirect economic benefits, The court held that this was a point of dispute that needed to be heard. About control 2 A factor——Nature of copyrighted works, The court said the portrait was in fact a creative work, Photographs are often thought of as creative and aesthetic expressions of scenes or images, It's always been copyrighted. The court further explained, Because Sedlick 10 Licensed the portrait years ago "Jazziz" Magazine use, The work itself constitutes "Spread widely" . The court held that 2 Two factors support the fair use defense. For control 3 A factor, This factor takes into account the quantity and quality of the materials used. The court made no mention of the core of the tattoo work or the quality of the work. The court held that the tattoo reproduced multiple elements of the portrait, The court ultimately ruled that this factor did not support the fair use defense.

About control 4 A factor, The court found no evidence of a major market for tattoos as an alternative to portraiture. but, Sedlick provided evidence that he had licensed the portraits for use in tattoo designs, And licensed the photos to tattoo parlors for reference. The court reached a conclusion, The future market for portraits and tattoos raises an issue that needs further trial. Sedlick is not suing Farmel, the recipient of the tattoo. The court said it was an unnecessary question, This factor is not decisive in summary judgment.

In a word, Court order 2 These factors support fair use, The first 3 Factor does not support fair use, The first 1 Sum control 4 One factor is the most important 2 A factor, It is questionable on both sides.

(Compiled from copyrightalliance. org)

Reprinted from China Intellectual Property Network   translation: Rason group　proofread: Wang Dan

disclaimer: This website reprint articles are from the Internet, Does not represent the views of this website or confirm the authenticity of its content. If the source is mislabeled or the copyright of the article is involved, Please contact this website, This website will be corrected in due course, delete, thank you.