In Sedlik v. Von Drachenberg, a renowned photographer sued a renowned tattoo artist for the reproduction of a photograph of Miles Davis as a tattoo and in social media posts that documented the process of the tattoo’s creation. After the jury found in favor of the defendant on questions of substantial similarity and fair use, the plaintiff appealed to the U.S. Court of Appeals for the Ninth Circuit. The case requires the Ninth Circuit—one of the two most influential federal circuits on copyright issues—to interpret and apply the Supreme Court’s two most recent copyright cases: Google LLC v. Oracle America, Inc. and Andy Warhol Foundation for the Visual Arts v. Goldsmith.
On behalf of Professor Pamela Samuelson, three clinic students drafted an amicus brief to aid in the Ninth Circuit’s application of these important precedents. It first explains that allowing juries to decide the ultimately question of fair use is entirely consistent with the Supreme Court’s Google decision. It then explains that the Court’s Warhol decision instructs courts and juries to focus on the specific details of each challenged secondary use. Finally, it observes that Warhol endorses many justifications for fair use beyond targeting the original work because those justifications further the purposes of copyright and benefit the public.