District court upholds jury verdict finding that tattoo created by celebrity tattoo artist Kat Von D of jazz icon Miles Davis was not substantially similar to photographer’s work, denying plaintiff’s renewed motion for judgment as matter of law and request for new trial.
After a jury returned a favorable verdict for defendants celebrity tattoo artist Kat Von D and High Voltage Tattoo in a copyright infringement suit, plaintiff Jeffrey B. Sedlik filed a renewed motion for judgment as a matter of law and a request for a new trial. The district court denied the motions. Sedlik, a professor and photographer, sued defendants in 2021 for copyright infringement after a photo he had taken of jazz icon Miles Davis was used as a reference for a tattoo inked by Von D. In addition to the tattoo itself, Sedlik alleged that social media posts depicting the tattoo and the photograph infringed on his copyright. After a four-day trial, the jury returned a verdict in defendants’ favor, concluding that the tattoo and social media posts were not substantially similar to Sedlik’s photograph.
Sedlik brought his renewed motion for judgment as a matter of law with respect to the jury’s finding that his photograph and Von D’s tattoo and related social media posts were not substantially similar. As the district court explained, the elements of a claim for copyright infringement are “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” To meet the second element, the plaintiff must show both copying and unlawful appropriation. When courts consider whether unlawful appropriation has occurred, they analyze whether the two works are substantially similar, applying a two-part test. Those tests—both of which must be satisfied—include the extrinsic test, which “compares the objective similarities of specific expressive elements in the two works” while filtering the protected elements from the unprotected elements, and the intrinsic test, which considers “similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.” The intrinsic test considers whether two works are substantially similar in “total concept and feel.”
Drawing an inference in favor of the non-moving party, the court reasoned that the jury must have concluded that the two works were not substantially similar because they differed in total concept and feel; the court noted that it had already ruled on summary judgment that a reasonable jury could reach that conclusion. The court determined that Sedlik had not met the “very high” standard for overturning the jury’s verdict on a renewed motion for judgment as a matter of law, which “requires a showing that there is no legally sufficient basis for a reasonable jury to find for the prevailing party on the challenged issue.”
Sedlik argued that he must have satisfied the intrinsic test because defendants did not present any evidence showing that the works have a different total concept and feel. But the court rejected this argument, noting that the point of the intrinsic test is that it need not rely on external evidence (such as expert opinion) and requires only that a jury compare the original work and alleged infringement. Because the intrinsic test seeks the perspective of an ordinary person, the court noted, the intrinsic test is “uniquely suited for determination by the trier of fact” such that “[a] court must be reluctant to reverse” a jury’s finding that two works are intrinsically similar. Sedlik also argued that it was unnecessary for the jury to apply the substantial similarity test because evidence of direct copying had already been established, but the court rejected this argument, stating that both of the two distinct prongs of copying and unlawful appropriation must be established.
The court also looked to Sedlik’s motion for judgment as a matter of law with respect to defendants’ fair use defense. However, because Sedlik’s motion at trial—after the close of evidence but before the jury rendered a verdict—did not address any fair use questions, he was now foreclosed from raising those issues after the verdict as a renewed motion for judgment as a matter of law.
The court next analyzed Sedlik’s motion for a new trial under Federal Rule of Civil Procedure Rule 59. According to Sedlik, it was against the clear weight of the evidence for the jury to find that the social media posts depicting the photograph and tattoo constituted fair use. Sedlik argued that the social media posts “were not transformative, were commercial, and harmed the market for Sedlik’s photograph.” Specifically, Sedlik contended that the U.S. Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith requires a work to “target” an original work to be transformative. The court disagreed and, citing the Supreme Court’s opinion that “the proponent of a fair use defense must either show that they targeted the original work or offer another ‘compelling justification for the use,’” found that targeting is not required. (Read our summary of the Supreme Court’s decision in Warhol here.) The court further held that, even if the evidence did not show that the social media posts were transformative, the jury could have found that the other fair use factors weighed in favor of a finding of fair use, including on the basis that the social media posts were not commercial as they did not offer to sell anything and did not generate any direct profits. Sedlik finally argued that the social media posts harmed his market for licensing his photograph. But, finding that Sedlik had not offered any evidence of licensing his photograph for a social media post, the court determined that the jury could have reasonably concluded that there was no harm to the potential market for Sedlik.
Lastly, Sedlik argued that certain jury instructions regarding the fair use factors were incorrect as a matter of law because they did not adequately inform the jury of the court’s prior findings on those factors. However, the court held that the discrepancies would not have “seriously affected” the jury’s understanding of the issues or prejudiced Sedlik. Accordingly, the court denied Sedlik’s motions.
Summary prepared by Safia Gary Hussain and Kyle Petersen