The U.S. Court of Appeals for the Ninth Circuit affirmed the jury’s verdict in Sedlik v. Von Drachenberg, et al. in a January 2, 2026, precedential opinion, finding that the allegedly infringing works were fair use. The case concerns Jeffrey Sedlik, a photographer who alleges that tattoo artist and television personality Katherine Von Drachenberg (Kat Von D) infringed his photograph of Miles Davis by using it as a reference for a tattoo that Kat Von D inked for free on a friend. This lawsuit concerns Kat Von D’s initial sketch, the tattoo itself, and the social media posts that captured the tattoo process.
At the U.S. District Court for the Central District of California, a jury found that there was no infringement because Kat Von D’s works were not substantially similar to Sedlik’s photograph. Sedlik filed a motion for judgment as a matter of law and for a new trial, asking the court to supersede the jury’s decision. The court denied the motion, and Sedlik appealed.
The Ninth Circuit uses a two-part test to determine if an allegedly infringing work is “substantially similar” to the plaintiff’s work: the extrinsic test and the intrinsic test. A plaintiff must satisfy both tests to prove substantial similarity. The “extrinsic test assesses the objective similarities of the works, while the intrinsic test considers similarity of expression from the standpoint of the ordinary reasonable observer. The intrinsic test is reserved for the finder of fact,” the Ninth Circuit explained in its decision. Stated another way, the intrinsic test focuses on the layperson, so it is uniquely suited for determination by the trier of fact.
Sedlik argued that the intrinsic test is met as a matter of law because all the works have a similar “mood and sentiment,” but he failed to provide any persuasive authority for the Ninth Circuit to question the jury’s verdict. Not convinced that Sedlik’s arguments provided adequate grounds, the Ninth Circuit panel “declined to disturb the jury’s findings as they pertained to the intrinsic test” and “concluded that because the jury found that the six works were not intrinsically similar to the photograph, it need not reach the extrinsic test.”
Judges Kim McLane Wardlaw and Anthony D. Johnstone concurred in the Ninth Circuit opinion but questioned what role, if any, the intrinsic test should play in future copyright cases. Wardlaw even suggested getting rid of the intrinsic test altogether because “the test and outcome distort copyright law.”
The intrinsic test began as a factual test to determine the substantial similarity of an idea’s overall expression, but according to the concurrences, over time it has become a more subjective test based on the jury’s own personal impressions. Juries are instructed to reach a verdict based on the works’ “total concept and feel,” which Wardlaw warns contradicts the U.S. Copyright Act’s clear statement that protection does not extend to ideas or concepts.
The intrinsic test may also create practical issues. If a jury’s subjective impression of a work’s “total concept and feel” is dispositive, then outcomes of copyright cases may be unpredictable. Johnstone cautions that the intrinsic test “invites juries to reach copyright verdicts unconstrained by copyright law.” These practical issues ring especially true since a jury’s intrinsic test findings are virtually unreviewable for plaintiffs; the Ninth Circuit has never reversed a jury’s determination that there is no substantial similarity under the intrinsic test. Johnstone noted with frustration that there is no recourse for a plaintiff when the jury errs here, since the intrinsic test is more appropriate for the jury than for the judge.