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Can a tattoo based on a photograph infringe copyright? The Kat Von D–Jeffrey Sedlik case produced a split verdict, not a blanket answer. Jurors found the tattoo, its sketch and several posts were not substantially similar to Sedlik’s Miles Davis photograph. They separately found four process images that reproduced the photograph to be fair use. The Ninth Circuit panel later affirmed the judgment, but that opinion was vacated when rehearing en banc was granted; the available case-status record lists oral argument for September 29, 2026, with no later result shown in the materials reviewed.
What the lawsuit was about
Photographer Jeffrey Sedlik made a portrait of jazz musician Miles Davis in 1989. In 2017, tattoo artist Kat Von D (Katherine Von Drachenberg) used the portrait as a reference for a tattoo she gave to her friend Blake Farmer. She also made a sketch and her High Voltage Tattoo shop and related social-media accounts posted images and updates about the work.
Sedlik sued Von Drachenberg and related defendants for copyright infringement. The case went to a jury trial in January 2024. The Ninth Circuit’s later opinion described Sedlik as a professional photographer and professor who had arranged Davis’s fingers in the “Shh!” gesture, adjusted his hair, selected wardrobe and jewelry, and directed Davis’s position and expression.
The parties also disputed commercial purpose. The Associated Press reported Sedlik’s lawyer said licensing the photograph, including for tattoo use, was part of Sedlik’s business. Von Drachenberg testified that she earned no money from the gifted tattoo and had not charged for tattoos since 2012 because she could not be booked for an appointment. Those were competing positions in the case, not findings that decided liability by themselves.
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What the jury actually decided
The verdict turns on a distinction that early reporting misstated. The jury did not find that the tattoo itself was fair use.
| Material at issue | Jury finding | Why the category matters |
|---|---|---|
| Tattoo | Not substantially similar to Sedlik’s photograph | The jury rejected the required similarity showing; it did not reach a fair-use defense for the tattoo. |
| Sketch | Not substantially similar | It was treated as a separate work from the photograph. |
| Messy Progress Post | Not substantially similar | A social-media item covered by the complaint. |
| Final Tattoo Post | Not substantially similar | A separate posted image or presentation of the tattoo. |
| Instagram Story | Not substantially similar | Another challenged social-media use. |
| Light Box Post | Not substantially similar | Evaluated independently by the jury. |
| Four Process Images | Von Drachenberg stipulated they were substantially similar; the jury found them non-infringing as fair use | These images showed Sedlik’s photograph in the background while the tattoo was being inked. Their fair-use finding cannot be transferred to the tattoo itself. |
The Associated Press later corrected its initial account, specifically clarifying this split between the no-substantial-similarity findings and the fair-use finding for the process images. AP reported that the eight-person jury deliberated for a little over two hours. After the verdict, Von Drachenberg said, “I’m obviously very happy for this to be over.”
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Why “not substantially similar” and “fair use” are different
Substantial similarity
Copyright infringement generally requires proof that the accused work is sufficiently similar to protected expression in the original. Here, the jury concluded that the tattoo, sketch and four named posts were not substantially similar to Sedlik’s photograph. That finding resolved those items without requiring a fair-use defense.
Fair use
For the four process images, similarity was stipulated. The legal question was therefore whether those reproductions were nevertheless permitted as fair use. The jury answered yes. A fair-use verdict for those documentary process images is a case-specific ruling, not a declaration that tattooing from a photograph is automatically lawful.
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What happened on appeal
On January 2, 2026, a Ninth Circuit panel affirmed the district court judgment. The panel said the denial of summary judgment was not reviewable in that appeal because it did not present a purely legal issue independent of disputed facts. It also held that Sedlik had not shown the jury’s substantial-similarity verdict was contrary to the only reasonable conclusion allowed by the evidence.
The panel applied the Ninth Circuit’s “intrinsic” test, which examines similarity of expression from the standpoint of an ordinary reasonable observer. Because the jury found no intrinsic similarity, the panel said it did not need to reach the “extrinsic” test. Judges Kim McLane Wardlaw and Anthony D. Johnstone wrote concurrences criticizing the intrinsic test’s lack of legal content and suggesting that Ninth Circuit doctrine be reconsidered. Those separate writings were not the panel’s holding.
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The appellate status is not final
The January panel opinion is no longer operative precedent for this case. A later case-status entry from Columbia Law School’s Visual Arts Infringement Database states that rehearing en banc was granted on June 9, 2026, vacating the panel opinion, and lists oral argument for September 29, 2026. The available record used for this article is dated September 28 and does not report what happened after that scheduled argument. The official court docket should be checked for the current result before relying on any en banc decision.
What this case does—and does not—establish
- It records a jury’s case-specific finding that this tattoo, sketch and named posts were not substantially similar to Sedlik’s photograph.
- It records a separate fair-use finding for four process images that reproduced the photograph.
- It does not create a blanket rule that tattoos based on photographs are permitted.
- It does not make the vacated January 2026 panel opinion controlling precedent.
- Future disputes would still turn on the particular photograph, tattoo, amount and type of copied expression, market evidence and procedural posture.
Why the distinction matters for artists and photographers
A tattoo may transform a reference image through a new medium, scale, placement and surrounding design, but those facts do not answer every copyright question. A photograph displayed during the tattooing process is a different use from the completed tattoo. The verdict demonstrates that courts and juries may analyze each image or post separately rather than treating an entire project as one undifferentiated act.
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For photographers, the case also shows why evidence about licensing markets can matter, even when a defendant says a particular work was gifted or produced without a fee. For tattoo artists, the practical lesson is narrower: a favorable verdict on these works does not eliminate the risk of a claim when recognizable protected expression is copied.
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