The Ninth Circuit Court of Appeals has affirmed a district court’s ruling in favor of tattoo artist Katherine Von Drachenberg (Kat Von D) and her former shop, High Voltage Tattoo, against photographer Jeffrey Sedlik, who claimed copyright infringement over his iconic photograph of Miles Davis. The case hinged on the contentious “substantial similarity” test used in copyright law, where the jury ultimately found that the resulting tattoo and related promotional materials were not substantially similar to Sedlik’s original work.
The ruling, delivered in a per curiam opinion, highlighted the deference owed to a jury’s findings under the subjective component of the Ninth Circuit’s two-part test for copyright infringement.
The Photograph and the Tattoo
Jeffrey Sedlik, a professional photographer, owns the copyright to a famous 1989 photograph of Miles Davis making a “Shh!” gesture. Sedlik meticulously controlled the lighting, Davis’s expression, and the positioning of his hands to create the artistic expression.
The dispute arose when Von Drachenberg, a well-known tattoo artist, agreed to tattoo an image of Miles Davis onto a friend’s arm using Sedlik’s photograph as a reference. Von Drachenberg first created a sketch of the photograph using tracing paper and then used a stencil to ink the design onto the client’s skin. She also posted several social media images documenting the tattooing process (the “Process Images”) and the final result.
Sedlik sued for copyright infringement, arguing that the tattoo, the sketch, and the social media posts unlawfully copied his protected expression.
The Jury’s Verdict: No Substantial Similarity
The case went to a jury trial. The jury faced two main issues regarding the six primary works (the tattoo, the sketch, and four social media posts): whether they were substantially similar to the photograph, and, for the four “Process Images,” whether their use constituted fair use.
Von Drachenberg stipulated that the four “Process Images”—which clearly showed a reproduction of Sedlik’s photograph in the background while she was working—were substantially similar. However, the jury found that these specific posts were protected as a fair use.
More critically, the jury returned a verdict finding that the tattoo, the sketch, and the other social media posts were not substantially similar to the photograph.
Sedlik subsequently asked the district court to overturn this verdict through a motion for judgment as a matter of law (a Rule 50(b) motion), arguing that the similarities were overwhelming. The district court refused, emphasizing that the subjective “intrinsic test” for similarity is uniquely suited for the jury.
Appellate Review: Summary Judgment Denied, Jury Verdict Upheld
On appeal, Sedlik challenged the denial of both his motion for summary judgment and his post-trial motion.
The Ninth Circuit panel swiftly dismissed the appeal concerning the summary judgment denial. Generally, an appeals court will not review a denial of summary judgment after a full trial on the merits, as the appeal should be rooted in the complete trial record, not the preliminary record. The court found no exception here, as Sedlik’s arguments depended on disputed facts regarding substantial similarity.
Regarding the post-trial motion, the court affirmed the district court’s refusal to overturn the jury. Copyright infringement requires satisfying both the objective extrinsic test (analyzing specific, protectable elements) and the subjective intrinsic test (assessing similarity from the viewpoint of an ordinary observer, or “total concept and feel”).
Because the jury found that the six works were not intrinsically similar, the court concluded it did not need to address the extrinsic test. The panel stressed its reluctance to overturn a jury’s finding under the intrinsic test, deeming it the province of the fact-finder.
Concurrences Raise Serious Doubts About the “Intrinsic Test”
While the majority affirmed the judgment based on existing precedent, two judges—Judge Wardlaw and Judge Johnstone—wrote separate concurrences that strongly criticized the legal standard used to reach the outcome.
Judge Johnstone noted that Von Drachenberg admitted to tracing the photograph and reproducing nearly all of Sedlik’s creative choices, yet the jury found no substantial similarity based on “total concept and feel.” He argued that this subjective, unreviewable standard invites juries to ignore clear copying of protected expression.
Judge Wardlaw joined Judge Johnstone’s critique, suggesting the intrinsic test is fundamentally flawed because it clashes with the Copyright Act, which explicitly states that copyright does not protect ideas or concepts. She pointed out that the test focuses on “total concept and feel,” which often relies on unprotected elements.
Both concurring judges called for the Ninth Circuit to re-examine and potentially discard the intrinsic test, arguing that it stacks the procedural deck against copyright plaintiffs by making summary judgment nearly impossible to obtain and verdicts based on a lack of subjective similarity nearly impossible to appeal successfully.
The ruling ultimately leaves the jury’s factual determination intact, but highlights a significant internal debate within the Ninth Circuit regarding the reliability and fairness of its substantial similarity framework.