On January 2, 2026, the Ninth Circuit, in a per curium opinion, affirmed the jury’s verdict in Sedlik v. Von Drachenberg, a copyright infringement case involving a tattoo by celebrity artist Kat Von D and a photograph of Miles Davis.[1]  The appeal centered on the Ninth Circuit’s decades‑old—yet frequently criticized—extrinsic–intrinsic test for substantial similarity.  Although the panel applied the test in accordance with existing precedent and left the doctrine formally intact, two concurring opinions sharply questioned whether the intrinsic prong, which asks jurors to compare the works’ “total concept and feel,” should be abandoned or fundamentally reworked—a change that could realign the Ninth Circuit’s substantial‑similarity analysis with that of other circuits and have direct implications for copyright litigation.  Sedlik has since filed a petition for rehearing en banc, which, if granted, could mark a significant reform of Ninth Circuit copyright law.

Background

In 1989, professional photographer Jeffrey Sedlik (“Sedlik” or “Plaintiff”) captured what would become an iconic photograph of jazz musician Miles Davis.[2]   The image depicts Davis making a “Shh!” gesture, with his fingers positioned to resemble musical notes.  Sedlik directed the pose, lighting, hair, wardrobe, and even Davis’s facial expression to achieve the desired effect.  He later registered the photograph with the Copyright Office and offers non‑exclusive licenses for its use.[3] 

Katherine Von Drachenberg, professionally known as Kat Von D, is a well-known tattoo artist who rose to fame through reality television shows like Miami Ink and LA Ink.[4]  Although she stopped charging for tattoos in 2012, she continues to create tattoos as gifts and owns the High Voltage Tattoo shop, where other artists work.  In 2017, Von Drachenberg created the tattoo at issue (the “Tattoo”) as a gift for a friend who admired Miles Davis.  To create the Tattoo, she used Sedlik’s photograph, which the friend provided, tracing and stenciling the image onto the client’s arm.

After discovering the Tattoo through posts on Von Drachenberg’s Instagram account, Sedlik filed a copyright infringement action against Von Drachenberg and High Voltage Tattoo (together, the “Defendants”) in the Central District of California.[5]

Procedural History

The case proceeded to trial in January 2024 after Sedlik was unsuccessful on summary judgment.  The jury returned a verdict of no infringement.  Five of the challenged works—the Tattoo, a preparatory sketch, two Instagram posts, and an Instagram story—were deemed not to be substantially similar to Sedlik’s photograph.  Four additional works, which the Defendants stipulated were substantially similar to the photograph, were found to constitute fair use.[6]

Sedlik moved for a renewed judgment as a matter of law (“RJMOL”), which the district court denied.[7]  He then appealed to the Ninth Circuit, arguing that the district court erred in denying his motions for summary judgement and for a RJMOL.

The Extrinsic–Intrinsic Test for Substantial Similarity

To establish copyright infringement, a plaintiff must demonstrate ownership of a valid copyright and unlawful copying of protected expression.[8]  As part of the copying inquiry, the plaintiff must show that the defendant’s work is substantially similar to the protectable elements of the plaintiff’s work.[9] Although there is no uniform test for substantial similarity, the federal courts of appeals generally employ variations of three approaches: the Ninth Circuit’s extrinsic–intrinsic test, the Second Circuit’s more discerning ordinary-observer test, and the Tenth Circuit’s abstraction-filtration-comparison test.[10]

The Ninth Circuit’s extrinsic–intrinsic test evaluates substantial similarity under a distinct two‑part framework.[11]  The extrinsic test, which presents a question of law, filters out unprotectable elements and compares the remaining protectable expression for objective similarity.  The intrinsic test, reserved for the finder of fact, asks whether an ordinary reasonable observer, without the aid of expert testimony, would regard the “total concept and feel” of the works as substantially similar.  To prevail on an infringement claim, a plaintiff must satisfy both tests.[12] 

The Second Circuit’s more discerning ordinary-observer test requires a court to filter out unprotectable elements and then ask whether an ordinary observer would regard the defendant’s work as having appropriated the plaintiff’s protected expression as a whole.  Similarly, the Tenth Circuit employs an abstraction–filtration–comparison framework that systematically dissects the plaintiff’s work to exclude ideas, scènes à faire, and other unprotectable material before comparing the remaining protectable expression for substantial similarity.[13]

The Ninth Circuit’s approach is distinctive in its formal bifurcation of the inquiry: while other circuits incorporate filtering of unprotectable elements throughout their substantial‑similarity analyses, the Ninth Circuit assigns that filtering to the extrinsic stage and leaves the intrinsic test as a purely subjective comparison.[14]

The Ninth Circuit Affirms the Jury Verdict of No Infringement

In a per curium opinion, the Ninth Circuit panel affirmed the jury’s verdict of no copyright infringement and rejected Sedlik’s challenges to the district court’s denial of summary judgment and his RJMOL.  Although Sedlik argued that the district court misapplied the substantial‑similarity framework, the panel explained that Ninth Circuit precedent foreclosed disturbing the jury’s intrinsic‑similarity finding. [15]

A. Summary Judgment

Although rare, a denial of summary judgment may be reviewed after a full trial where the issue is purely legal.[16] The panel was unpersuaded, however, by Sedlik’s argument that the district court misapplied the extrinsic test, which is a question of law.  Instead, the panel pointed to the district court’s determination that multiple triable issues of fact remained regarding substantial similarity.  Because the issue was not purely legal, the panel declined to review the denial of summary judgment.[17]

B. Renewed Judgment as a Matter of Law

Turning next to the RJMOL, the panel considered whether the evidence permitted only one reasonable conclusion–and whether that conclusion was contrary to the jury’s verdict.[18]  The majority upheld the district court’s denial, relying on precedent cautioning that reversing a jury’s finding on the intrinsic test would be “tantamount” to substituting the panel’s subjective judgment for that of the jury.[19]  Because a plaintiff must prevail on both the extrinsic and intrinsic tests to establish substantial similarity, the panel concluded that it need not reach the extrinsic test once the jury’s intrinsic finding stood.

Concurring Opinions

Judges Wardlaw and Johnstone concurred in the judgment but wrote separately to emphasize that their “rubber stamp” of the jury’s verdict was compelled by binding precedent.[20]  In their view, the Ninth Circuit’s intrinsic test is fundamentally incompatible with copyright law and should be reformed—or discarded altogether.

A. Judge Wardlaw

Judge Wardlaw urged the court to abandon the intrinsic test altogether.  She reasoned that asking juries to assess the “total concept and feel” of a work conflicts with the Copyright Act’s prohibition on protecting ideas and concepts.[21]  See 17 U.S.C. § 102(b).  She further criticized the test for delegating the legal question of unlawful appropriation to juries in a manner that largely insulates their decisions from appellate review.[22]

Judge Wardlaw advocated an approach more closely aligned with the U.S. Supreme Court’s reasoning in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., which emphasizes filtering protectable elements from unprotectable elements, rather than relying on an inquiry devoid of dissection and analysis.[23]

B. Judge Johnstone

Judge Johnstone similarly called for reform of the intrinsic test, emphasizing that the doctrine of substantial similarity has drifted from its origins and now rests on a jury’s largely unguided assessment.

Tracing the development of the extrinsic-intrinsic test to cases such as Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970), and Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977), Judge Johnstone explained that “total concept and feel” was originally intended to capture protectable selection and arrangement.  Over time, however, the expansion of the extrinsic test has left the intrinsic test as a subjective inquiry, untethered from doctrinal constraints.  As a result, the intrinsic prong now functions as a standardless evaluation.[24]

Judge Johnstone further warned that the intrinsic test yields unpredictable and asymmetric outcomes.  Because it cannot be resolved as a matter of law, plaintiffs rarely succeed at summary judgment and are instead forced to proceed to trial, where juries are given no analytic framework and may not rely on expert testimony.  At the same time, erroneous findings of no infringement are largely insulated from appellate review.[25]

What’s Next

Sedlik’s February 17 petition asks the Ninth Circuit to rehear the case en banc and address the proper standard for substantial similarity.[26]  Defendants have until March 11, 2026 to submit their reply.[27]  If the full court elects to take up the case, the concurring opinions by Judge Wardlaw and Judge Johnstone suggest it could serve as a vehicle for reexamining the Ninth Circuit’s extrinsic–intrinsic framework—an approach with significant practical consequences for summary judgment, appellate review, and forum selection in copyright litigation.  Regardless of whether the petition is granted, Sedlik highlights growing judicial unease with the intrinsic test and signals that reform of the Ninth Circuit’s substantial‑similarity doctrine may be on the horizon.

[1] See Sedlik v. Von Drachenberg, No. 24-3367, 163 F.4th 667, 670 (9th Cir. Jan. 2, 2026).

[2] Id. at 671.

[3] Id.

[4] Id. at 671-672.

[5] Id. at 673; see Sedlik v. Drachenberg, No. 2:21-cv-01102 (C.D. Cal. Feb. 7, 2021).

[6] Sedlik, No. 24-3367, 163 F.4th 667 at 673.  The Ninth Circuit issued a separate unpublished memorandum affirming the district court’s fair use finding.  See Sedlik v. Von Drachenberg, No. 24-3367, 2026 BL 119 (9th Cir. Jan. 02, 2026).

[7] Id.

[8] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

[9] Sedlik, No. 24-3367, 163 F.4th 667 at 674 (citing Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc)).

[10] Robert C. Osterberg & Eric C. Osterberg, Substantial Similarity in Copyright Law § 3 (Incorporating Release #22 2025).

[11] Sedlik, No. 24-3367, 163 F.4th 667 at 674 (citing Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc)).

[12] Id.

[13] Robert C. Osterberg & Eric C. Osterberg, Substantial Similarity in Copyright Law § 3 (Incorporating Release #22 2025).

[14] See Id.

[15] Sedlik, No. 24-3367, 163 F.4th 667 at 674-76.

[16] Id. at 674.

[17] Id. at 674-75.

[18] Id. at 675 (citing Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006)).

[19] Id.

[20] Id. at 685 (Johnstone, J., concurring).

[21] Id. at 677 (Wardlaw, J., concurring).

[22] Id. at 678 (Wardlaw, J., concurring).

[23] Id. at 679 (Wardlaw, J. concurring); see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 348 (1991).

[24] Id. at 680-83 (Johnstone, J., concurring).

[25] Id. at 682-85 (Johnstone, J., concurring).

[26] Def.’s Pet. for Reh’g en banc at 1, Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir. Feb 17, 2026).

[27] Order, Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir. Feb 18, 2026).