4 Lessons From Kat Von D’s Miles Davis Copyright Infringement Suit

Celebrity tattoo artist, Kat Von D, is being sued for copyright infringement by a photographer whose photograph of Miles Davis was reproduced as a tattoo by Kat Von D. The photograph was used without the permission of the photographer who is the copyright owner. A copyright owner has several exclusive rights over their work, one of such rights being the right to create derivative works from the original work. A copyright owner can exploit their exclusive rights to the work in several ways – they can exploit the work themselves, they can license the rights to others for a specific period of time, or they can assign (permanently transfer) the rights to someone else.

Copyright owners control these exclusive rights over the work with some exceptions. These exceptions allow the copyrighted work to be used in certain circumstances without the permission of the copyright owner.

Copyright Exceptions in the US

In the US, these exceptions are referred to as fair use. Fair use in the US is based on four factors:

1. The purpose and character of the use, looking at whether and to what extent the resulting new work is transformative, i.e., whether the new work add something new to the original or gives it a different character.
2. The nature of the copyrighted work. This factor considers amongst other things, whether the original work is factual or creative. Note that facts cannot be copyrighted.
3. The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole. This factor looks at both the quality of the portion of the work used and the quantity of what is copied.
4. The effect of the use upon the potential market for or value of the copyrighted work. This is probably the most important element of fair use consideration. This factor considers whether the subsequent work has an adverse effect on and/or usurps the market of the original work.

Copyright Exceptions in Nigeria

In Nigeria, rather than a set of factors like those set out for the consideration of fair use in the US, the allowable exceptions for use are specifically set out in the Copyright Act. It is a long list set out in Second Schedule of the Act. The exceptions include:

1. Fair dealing for purposes of research, private use, criticism or review, or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast.
2. Use for parody, pastiche, or caricature.
3. Inclusion of the work in a film or a broadcast of an artistic work situated in a place where it can be viewed by the public.
4. Reproduction and distribution of any artistic work permanently situated in a place where it can be viewed by the public.
5. Incidental inclusion of an artistic work in a film or broadcast.
6. Limited use (not more than two excerpts) in a collection for educational use if the collection bears a statement that it is designed for educational use and includes an acknowledgment of the title and authorship of the work.

Lessons from The Case Between Kat Von D and Jeffrey Sedlik

According to the report about this copyright infringement case against Kat Von D, the photographer, Jeffrey Sedlik, made unsuccessful attempts to privately reach out to Kat Von D about her use of his photograph without his permission. And so we now now have a lawsuit. No one, except litigation lawyers, maybe, likes to deal with a lawsuit, but lawsuits are welcome guides for our business practices. So here are four lessons from this case:

Lesson 1: When using works created by a third party for your business, cover all your IP bases – establish ownership, establish whether the intended usage requires permission from the copyright owner, get permission from the owner to use it. If you have commissioned someone to create work for your business, in addition ownership of intellectual property, the work agreement should include an indemnity clause to help protect your business from any liability arising from the work produced for your business. An indemnity clause may not absolve you of all liability should an infringement claim be brought against you, but it puts your contractor on notice to take reasonable care in producing work for you.

Lesson 2: You need permission from a copyright holder to make a derivative of their work. The right to create a derivative of an existing work is one of the exclusive rights of a copyright holder. You must get a license from the copyright holder to create derivatives from or adaptations of the original. Unless your use falls within the allowable exceptions or fair use, seek permission or do not use the copyrighted work.

Lesson 3: When there’s an offer to settle out of court, consider it seriously. Unless you are trying to make a point, you want to litigate for the fun of it, or your case is critical for public policy, consider any opportunity to come to the table and negotiate a settlement.

Lesson 4: The fee to obtain a license from the copyright owner will always be cheaper than defending an infringement claim.

Read the Basics articles on intellectual property, copyright, and managing your intellectual property for more about copyright and intellectual property, generally.