Facts Not Feelings: Is The Intrinsic Test Getting Inked Out?

Sedlik v. Von Drachenberg et al., Case No. 24-3367 (9th Cir. 2026)

On January 2, 2026, the Ninth Circuit affirmed a jury verdict finding that tattoo artist Katherine Von Drachenberg (also known as Kat Von D) and her tattoo parlor, High Voltage Tattoo, did not infringe photographer Jeffrey Sedlik's copyright in an iconic photograph of Miles Davis, holding that the tattoo and related sketches were not substantially similar and that Von Drachenberg's social media posts depicting the photo and tattoo constituted fair use. Although the Ninth Circuit ultimately affirmed the jury verdict, the intrinsic test, which is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the work, was called into doubt. 

 Sedlik is a professional photographer who created and copyrighted the Miles Davis photograph in 1989 and had licensed it for various uses over the years. Von Drachenberg, a well-known tattoo artist, used the photograph in 2017 as a reference to create a photorealistic tattoo of Davis for a friend. In the process, Von Drachenberg traced the photograph to create a stencil, freehand shaded the tattoo, and changed the lighting. Von Drachenberg also changed other details to cause the perception of movement. Various images of the tattooing process and final tattoo appeared on social media. After discovering the tattoo and posts, Sedlik contacted Von Drachenberg's representatives without success and subsequently filed suit in the Central District of California alleging copyright infringement.

In the lower court, both sides were denied summary judgment, and the case proceeded through a jury trial. The jury examined the tattoo in person and heard testimony from both parties. The jury concluded that the tattoo, sketch, and most social media posts were not substantially similar to the photograph under the intrinsic test and, although Von Drachenberg stipulated that certain process images reproduced the photograph, the jury found those uses to be fair under the Copyright Act. The jury's verdict was based on a holistic comparison from the perspective of the lay observer rather than an analysis that considered dissection of unprotected and protected components or expert testimony.

On appeal, the Ninth Circuit held that the district court properly denied Sedlik's Rule 50 motions and motion for a new trial, emphasizing the deference owed to the jury's intrinsic-test findings and the evidentiary support for the fair use determination. 

The decision is significant for copyright law, particularly in the context of tattoos and other cross-medium works. While affirming the verdict for Von Drachenberg, the case generated notable concurring opinions questioning the Ninth Circuit's longstanding intrinsic test for substantial similarity, with two judges calling for its reconsideration or abandonment. The case underscores the difficulty copyright plaintiffs face when infringement turns on a jury's subjective assessment of “total concept and feel,” but signals potential future doctrinal shifts in how courts evaluate substantial similarity in complex artistic cases. 

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