On June 9, 2026, Ninth Circuit Chief Judge Mary H. Murguia granted a rare full rehearing en banc in Sedlik v. Von Drachenberg[1] (the court grants it in only about one out of every seventy petitions it receives).[2] The Sedlik case involves a tattoo, a photograph of Miles Davis, and a legal question that should have been easy — nobody disputes that the tattoo was copied from the photograph. The question the Ninth Circuit is now reopening is why that fact wasn’t enough to win the case.
The Facts, Fast
In 1989, photographer Jeffrey Sedlik captured a now-iconic portrait of jazz legend Miles Davis — dimly lit, finger pressed to his lips in a “Shh!” gesture. Sedlik registered the photograph with the U.S. Copyright Office in 1994.[3] In 2017, celebrity tattoo artist Katherine Von Drachenberg — known professionally as Kat Von D — gave a friend a tattoo of the Davis image, working directly from Sedlik’s photograph: she projected it on a light box to trace the outline, made a stencil from that tracing, and inked the piece with the photograph propped up next to her for reference throughout.[4] Her own shop described the finished tattoo, in a social media post, as “100% exactly the same” as the original.[5]
Sedlik sued for copyright infringement in 2021.[6] Von Drachenberg conceded that four social media posts documenting the tattooing process directly reproduced the photograph. But as to the tattoo itself, the preparatory sketch, and the remaining posts, the case went to a jury — which found no “substantial similarity” to the photograph at all. The four process images that did reproduce the photo were excused separately, as fair use.[7] Kat Von D won across the board. The district court declined to disturb the verdict, and Sedlik appealed.
Two Tests, One Broken Link
The reason a jury could look at a traced, stenciled, “100% exactly the same” tattoo and still find no infringement lies in how the Ninth Circuit defines “substantial similarity” — the standard a copyright plaintiff must clear to prove a defendant took more than just an idea.
The circuit splits the inquiry into two parts.[8] The extrinsic test is objective: a judge, often aided by expert testimony, identifies a work’s protectable creative elements — composition, lighting, pose — filters out anything unprotectable, and compares what’s left. Because it’s treated as a legal question, it can sometimes be resolved on summary judgment. The intrinsic test is subjective: a jury, without expert guidance and without picking the works apart, simply asks whether an ordinary observer would find the two works to share the same “total concept and feel.”[9] Most other circuits filter out unprotectable elements before any holistic comparison happens; the Ninth Circuit’s intrinsic test asks jurors to make that comparison with no filter at all.
That gap is what sank Sedlik’s case. However close the extrinsic elements were, the jury’s gut read of “total concept and feel” was final — and a photograph and a tattoo inked on human skin, existing in entirely different media, will almost never feel alike to an ordinary observer, regardless of how directly one was copied from the other.
On January 2, 2026, a three-judge panel affirmed the jury’s verdict. The rule behind it dates to the 1970s, and only the full court, sitting en banc, has the power to change it.[10] But two of the three judges seemed unhappy about it. Judges Kim McLane Wardlaw and Anthony Johnstone each wrote separate concurrences criticizing the very test they were applying. Judge Wardlaw called the intrinsic test “fundamentally flawed” and “virtually devoid of analysis,” warning that the result here “distort[s] copyright law” and leaves creators’ work “vulnerable to ‘clever thieves.’”[11] Judge Johnstone put it more bluntly still: the test has become “an invitation for juries to reach copyright verdicts unconstrained by copyright law,” and “a test that produces such a result cannot be right.”[12] Two of the three judges bound to affirm still used their concurrences to make the case against the very rule that bound them — and five months later, the full court agreed it was worth a second look.
Industry Lines Are Drawn
Expect this fight to draw in entertainment’s biggest trade groups. In most circumstances, eliminating the intrinsic test seems like it would benefit the music industry: sampling and composition disputes tend to turn on note-for-note, expert-verifiable comparisons, and a test that lets a jury override those comparisons with an unexplained gut reaction can be a liability for labels defending — or bringing — those claims. That argument isn’t just theoretical; it’s the fact pattern in Sedlik itself, where an admitted, traced, “100% exactly the same” copy still lost because it didn’t feel similar enough.
Film and television interests might be expected to push back against efforts to eliminate the intrinsic test entirely. A test built around objective, filterable elements can work well for a photograph or a sampled drum loop, but it may be a weaker fit for disputes over mood, pacing, and structure — the kind of claims that can come up when two competing films share a premise but little else in concrete, filterable detail. If the Ninth Circuit were to eliminate the intrinsic test wholesale, it could risk trading one problem — juries deciding cases on unreviewable gut calls — for another: judges deciding cases as a matter of law that might otherwise belong in front of a jury. One response to that concern would be to fix the intrinsic test’s lack of structure without eliminating the jury’s role in judging a work’s overall character altogether.
There are others who support a “think before you ink” approach. At the panel stage, tattoo artists Ross Berg, Jonny Gomez, and Maxime Plescia-Buchi filed an amicus brief backing Sedlik, attesting that the only differences between the photograph and the tattoo were those necessary to accommodate the change in medium.[13] The American Society of Media Photographers has separately thrown its weight behind Sedlik at the en banc stage, with CEO Thomas Maddrey calling the case “a chance to right a wrong in copyright law” and arguing the intrinsic test should be sent “to the dustbin of history.”[14] On the other hand, Authors Alliance filed backing Von D, arguing juries are well-suited to decide these cases and that the Supreme Court’s fair use framework in Andy Warhol Foundation v. Goldsmith already gives courts the tools they need without discarding the intrinsic test.[15]
What’s Actually on the Table
The en banc court is an eleven-judge panel — Chief Judge Murguia plus ten judges drawn at random from the circuit’s active bench. It has three paths available:[16]
- Eliminate the intrinsic test entirely — folding substantial similarity into a single, expert-aided, filter-first analysis closer to how most other circuits already handle it.
- Merge the two tests — preserving a holistic comparison, but only after unprotectable elements are stripped out first. This is the approach Judge Wardlaw's concurrence gestures toward.[17]
- Downgrade the intrinsic test — from a dispositive, case-ending question to one piece of evidence among several.
Each path reallocates power differently between judges and juries, and between plaintiffs and defendants — the current test tends to let defendants win early, at summary judgment, while all but foreclosing plaintiffs from ever winning early at all.[18]
Whichever direction the court takes, the ripple effects will extend well past tattoo artists and photographers. The same substantial similarity standard governs music sampling suits, screenplay disputes, and increasingly, claims involving AI-generated content — an area where “does this feel similar” questions are only going to become more common, not less. For a doctrine that’s essentially stood unchanged for fifty years, the Ninth Circuit just signaled it’s ready to look again.
Oral argument before the en banc panel is scheduled for the week of September 28 in San Francisco.[19]
*Anthony Neoman is an intern in the firm's Century City office.
FOOTNOTES
[9] Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970)
[15] Authors Alliance Submits Amicus Brief in Sedlik v. Drachenberg, Authors Alliance (Dec. 23, 2024)
[17] Will the Kat Von D Tattoo Case Kill “Total Concept and Feel”?, Copyright Lately (Feb. 2026)
[18] En Banc Ninth Circuit to Reconsider Copyright’s Total Concept and Feel Test, Patently-O (June 2026)
[19] Kat Von D Tattoo Case Headed for En Banc Review | Copyright Lately