The Miles Davis photograph saga – sometimes a jury can leave you “Kind of Blue”
By Michael Antone, IP Attorney at Nemphos Braue
On January 26, 2024, a jury found that Kat Von D’s Miles Davis tattoo did not infringe the copyrights of the photographer Jeffrey Sedlik’s in his 1989 Miles Davis photograph.
Copyright law is the exclusive jurisdiction of the US government pursuant to the US Constitution, Article I, Section 8, Clause 8. 17 USC § 106 grants a content owner “the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work”
17 U.S. Code § 501 defines copyright infringement as “(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 … is an infringer of the copyright or right of the author, as the case may be.”
According to the US Court of Appeals, 9th Circuit, which is where the case was tried, in proving copyright infringement, the plaintiff has the burden of proving by a preponderance of the evidence that “the defendant had access to the plaintiff’s work and that there is a substantial similarity between the infringed and infringing works”.
If access and substantial similarity are shown, “then a presumption of copying arises shifting the burden to the defendant to rebut the presumption or to show that the alleged infringing work was independently created”.
In this case, Kat Von D provided the evidence of access to Mr. Sedlik’s work on her Instagram page.
Read more and see the Instagram post as highlighted in Rolling Stone.
Her post may have also provided sufficient evidence of the actual act of copying to rebut any assertion by her of independent creation.
The other element of copying that must be proven is substantial similarity. See a comparison as noted in Bloomberg.
In order to find that Kat Von D did not infringe Jeffrey Sedlik’s copyright, the jury had to find that 1) Kat Von D had no access to the copyrighted work and/or 2) there is not a substantial similarity between the copyrighted and accused work.
Fortunately for Mr. Sedlik, the decision can be appealed.
Irrespective of how the case is ultimately decided, it is a cautionary tale for individuals and businesses about the need to take care when contemplating any use of another’s intellectual property and to protect their own intellectual property, as intellectual property rights are the right to exclude others’ use of your intellectual property, which can be a significant asset to you and your business.
When it comes to copyrights, make sure you you’re protected. Learn more in these Copyright FAQs or reach out to us for a consultation.
Post script: Miles Davis released Kind of Blue in 1959 and it is considered by many to be one of his best albums.
