It’s critical that copyright be balanced with limitations that support users’ rights, and perhaps no limitation is more important than fair use. Critics, humorists, artists, and activists all must have rights to re-use and re-purpose source material, even when it’s copyrighted. 

Yesterday, EFF weighed in on another case that could shape the future of our fair use rights. In Sedlik v. Von Drachenberg, a Los Angeles tattoo artist created a tattoo based on a well-known photograph of Miles Davis taken by photographer Jeffrey Sedlik. A jury found that Von Drachenberg, the tattoo artist, did not infringe the photographer’s copyright because her version was different from the photo; it didn’t meet the legal threshold of “substantially similar.” After the trial, the judge in the case considered other arguments brought by Sedlik after the trial and upheld the jury’s findings. 

On appeal, Sedlik has made arguments that, if upheld, could narrow fair use rights for everyone. The appeal brief suggests that only secondary users who make “targeted” use of a copyrighted work have strong fair use defenses, relying on an incorrect reading of the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith. 

Fair users select among various alternatives, for both aesthetic and practical reasons.

Such a reading would upend decades of Supreme Court precedent that makes it clear that “targeted” fair uses don’t get any special treatment as opposed to “untargeted” uses. As made clear in Warhol, the copying done by fair users must simply be “reasonably necessary” to achieve a new purpose. The principle of protecting new artistic expressions and new innovations is what led the Supreme Court to protect video cassette recording as fair use in 1984. It also contributed to the 2021 decision in Oracle v. Google, which held that Google’s copying of computer programming conventions created for desktop computers, in order to make it easier to design for modern smartphones, was a type of fair use. 

Sedlik argues that if a secondary user could have chosen another work, this means they did not “target” the original work, and thus the user should have a lessened fair use case. But that has never been the rule. As the Supreme Court explained, Warhol could have created art about a product other than Campbell’s Soup; but his choice to copy the famous Campbell’s logo was fully justified because it was “well known to the public, designed to be reproduced, and a symbol of an everyday item for mass consumption.” 

Fair users always select among various alternatives, for both aesthetic and practical reasons. A film professor might know of several films that expertly demonstrate a technique, but will inevitably choose just one to show in class. A news program alerting viewers to developing events may have access to many recordings of the event from different sources, but will choose just one, or a few, based on editorial judgments. Software developers must make decisions about which existing software to analyze or to interoperate with in order to build on existing technology. 

The idea of penalizing these non-“targeted” fair uses would lead to absurd results, and we urge the 9th Circuit to reject this argument. 

Finally, Sedlik also argues that the tattoo artist’s social media posts are necessarily “commercial” acts, which would push the tattoo art further away from fair use. Artists’ use of social media to document their processes and work has become ubiquitous, and such an expansive view of commerciality would render the concept meaningless. That’s why multiple appellate courts have already rejected such a view; the 9th Circuit should do so as well. 

In order for innovation and free expression to flourish in the digital age, fair use must remain a flexible rule that allows for diverse purposes and uses. 

Further Reading: 

• EFF Amicus Brief in Sedlik v. Von Drachenberg