Intellectual Property Litigation

Herrick counsel, Barry Werbin, was quoted in Law360 about a case involving claims of copyright infringement by an artist whose photograph was used as a reference for a tattoo, one of the most notable copyright cases to watch for 2024.

The article noted that in January 2024, a California federal jury found that Jeffrey B. Sedlik's portrait of Miles Davis was not substantially similar enough to a tattoo celebrity artist Katherine Von Drachenberg (Kat Von D) inked on her friend. "I think he's got a reasonably strong argument on appeal that there was no factual issue that his portrait of Miles Davis was copied because you see the tattoo artist having his photo in front of her doing the tattoo," said Barry, who represented Goldsmith in the Warhol case when it was in district court. Sedlik was one of Goldsmith's experts in district court, Barry said.

Barry said he expects Sedlik to argue that the tattoo Von D created was "clearly not transformative."

"It was copied," he said. "And I guess the question then becomes, what's the market harm?"

Read the full article in Law360 here. Access may require a subscription.