by Dennis Crouch

The Ninth Circuit has granted rehearing en banc in Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir. 2026), the copyright case pitting photographer Jeffrey Sedlik against celebrity tattoo artist Katherine Von Drachenberg (better known as Kat Von D) over a tattoo based on Sedlik’s 1989 portrait photograph of Miles Davis. Amicus briefs are due at the end of June 2026, and the case now stands as the most direct challenge in fifty years to the Ninth Circuit’s two-part “extrinsic/intrinsic” framework for copyright’s substantial similarity requirement.

Extrinsic vs. Intrinsic: In Ninth Circuit copyright cases, "substantial similarity" requires passing two separate tests. The extrinsic test is objective: a court lists the works' concrete elements, filters out unprotectable material (ideas, facts, stock devices), and compares what remains. Judges can resolve it on summary judgment, and experts may testify. The intrinsic test is subjective: it asks whether an ordinary observer would find the works similar in overall "total concept and feel." No expert testimony is allowed, and the question is reserved for the jury. A plaintiff must win both tests to prove infringement; a defendant needs to win only one.

In some ways the case is about procedure – asking who decides, and by what standard? The panel decision found that a jury’s subjective finding of no “substantial similarity” under the circuit’s intrinsic test was essentially unreviewable, even where the defendant had traced the plaintiff’s photograph to create a stencil and her shop had advertised the result as “100% exactly the same as the reference.” Two members of the three-judge panel, Judges Wardlaw and Johnstone, concurred separately to argue that the intrinsic test and its “total concept and feel” standard should be discarded entirely as inconsistent with the Copyright Act and Supreme Court precedent. Those concurrences supplied the roadmap for the en banc petition, and the full court has now taken the invitation.

The Infringement Framework. Start with the basics. A copyright infringement plaintiff must prove two elements: ownership of a valid copyright and copying of protected expression by the defendant. The second element itself divides into two distinct inquiries that courts often confusingly label with the same “substantial similarity” terminology. The first is factual copying: did the defendant actually copy from the plaintiff’s work rather than create independently? Copying can be proven directly (as here, where Von Drachenberg admitted using the photograph as her reference) or circumstantially through access plus similarity. The second inquiry is unlawful appropriation: did the defendant take enough protected expression to make the copying actionable? Not all copying infringes. Copyright protects only original expression, not ideas, concepts, facts, or stock elements. The unlawful appropriation question is the focus of Sedlik.

Photographs make the protected/unprotected line especially slippery. The photographer does not own Miles Davis’s face. What copyright protects is the photographer’s selection and arrangement of otherwise unprotected elements: the subject’s positioning, the lighting, the camera angle, the timing, all of which result in the composition as a whole. Sedlik’s photograph is a textbook example of authorial control. He arranged Davis’s fingers into the “Shh!” gesture so they would evoke musical notes, styled the hair, selected the wardrobe, directed the facial expression, and made deliberate lighting and lens choices to produce the dimly lit, high-contrast final image.

What Happened at Trial. Sedlik sued Von Drachenberg back in 2021, with claims directed against the tattoo itself, Von Drachenberg’s preparatory sketch, and a series of social media posts documenting the process. Judge Dale Fischer denied Sedlik’s summary judgment motion, finding triable issues under both the extrinsic and intrinsic tests. At the trial, the jury examined the tattoo in person as well as the sketch and ultimately found no substantial similarity.

On appeal, the Ninth Circuit panel refused to review the denial of Sedlik’s summary judgment motion – based upon the general rule that a party cannot appeal a summary judgment denial after a full trial on the merits because the trial record supersedes the summary judgment record. A narrow exception exists for purely legal questions independent of disputed facts, but the panel held the exception inapplicable because the district court’s denial rested on factual disputes about similarity that was then decided at trial.

Second, the panel affirmed the denial of Sedlik’s Rule 50(b) motion for judgment as a matter of law (JMOL). Here the intrinsic test did all the work. Because the jury’s verdict could rest on its subjective finding that the works lacked a similar total concept and feel, and because that subjective determination is “uniquely suited” to the factfinder, the panel declined to disturb it. Sedlik argued that the court should intervene in a case like this where extrinsic similarity is overwhelming. But the panel responded that the procedural posture made all the difference: after a jury verdict, overriding the jury’s subjective comparison would amount to supplanting the jury’s interpretation with the court’s own.

The panel’s procedural-posture reasoning sits uneasily with ordinary civil procedure. The Rule 50(b) standard is supposed to be identical to the Rule 50(a) standard, and both mirror the summary judgment standard of Rule 56, asking whether the evidence permits only one reasonable conclusion. Under that orthodoxy, a verdict does not normally acquire extra insulation simply by having been rendered. Yet the panel treated the verdict itself as changing the question, reasoning that post-trial relief would supplant the jury’s subjective interpretation with the court’s own.

The Concurrences. The lasting importance of the panel decision lies in the two concurrences, which together read as a petition for rehearing drafted from the bench. Judge Johnstone, joined by Judge Wardlaw, traced the doctrinal history.  That history, according to his explanation, began with a pro-plaintiff function but ultimately inverted into a standardless veto that operates against copyright holders.

Judge Wardlaw, joined by Judge Johnstone, went further and argued that the intrinsic test conflicts with both the copyright statute and with Supreme Court precedent. Section 102(b) states that copyright protection does not extend to any idea or concept, yet the intrinsic test instructs juries to compare the works’ total “concept” and feel. Both concurring judges stated plainly that, freed from circuit precedent, they would have held that the tattoo infringed.

The Differential Impact. The most analytically interesting portion of Johnstone’s concurrence describes how the intrinsic test distributes procedural advantages, and the asymmetry runs in one direction. Consider the doctrine’s operation at each stage of litigation. At summary judgment, defendants can win by defeating the extrinsic test, which courts may decide as a matter of law, and the Ninth Circuit regularly affirms such rulings.

At trial, the intrinsic test bars expert testimony, so a plaintiff cannot use an expert to help the jury distinguish protected from unprotected material or to explain how one medium translates into another. That limitation could matter most in cross-media cases like this one. An ordinary observer comparing a photograph to a tattoo may register the differences inherent in skin as a canvas as differences in total concept and feel, even where every protected compositional choice has been carried over. And the differential impact continues on appeal, where the subjective intrinsic verdict shields defense wins from meaningful review while leaving infringement verdicts fully exposed.