In a recent legal development that could have significant consequences for the fair use rights of copyrighted works, the Ninth Circuit Court of Appeals is reviewing an appeal in the case Sedlik v. Von Drachenberg. This case involves a Los Angeles tattoo artist who created a design based on a famous photograph of iconic musician Miles Davis, taken by photographer Jeffrey Sedlik. Initially, a jury determined that the tattoo artist had not infringed the copyright, arguing that his work was not “substantially similar” to the original image.
After the trial, the judge ruled on other arguments presented by Sedlik and upheld the jury’s decision. However, in his appeal, Sedlik argues that only secondary users who use the work in an “objective” manner would have a strong defense under the fair use doctrine. This interpretation is based on a Supreme Court ruling related to artist Andy Warhol, and could significantly redefine the current legal understanding of fair use.
Traditional interpretations by the Supreme Court have established that fair use does not distinguish between “objective” and “non-objective” uses. According to these principles, fair users’ reproduction must be “reasonably necessary” to serve a new purpose. This concept was key in previous decisions, such as the protection of videotape recordings in 1984 and the 2021 ruling that considered Google’s behavior in copying programming conventions as fair use.
Sedlik argues that if a secondary user has the option to select another work, they have not “objectified” the original and, therefore, their fair use justification should be weaker. However, this principle has never been part of the established criteria. Historically, fair users choose alternative works for aesthetic or practical reasons; for example, a teacher might select a specific film from several options to illustrate a particular technique in class.
Furthermore, Sedlik argues that the tattoo artist’s social media posts should be necessarily considered as “commercial” acts, which would take his art out of the realm of fair use. Faced with this expanded view of commerciality, several appellate courts have rejected such restriction, arguing that the concept of fair use should not be limited in that way.
In the digital age, it is crucial that fair use remains a flexible standard that allows a wide range of purposes and uses. Therefore, advocates for user rights urge the Ninth Circuit to reject proposals that seek to restrict this fundamental principle.
Source: MiMub in Spanish
