On January 2, 2026, the Ninth Circuit issued a closely watched copyright decision in Sedlik v. Von Drachenberg. The decision’s significance lies not in the verdict itself, but in the Court’s unusually candid critique of the substantial-similarity doctrine.
The case concerns a well-known photograph taken by Jeffrey Sedlik of jazz icon Miles Davis and Kat Von D’s use of the photograph as a reference for a photorealistic tattoo she inked on a friend’s arm as well as the content she posted on social media depicting the process of creating this tattoo. After a jury trial, the jury found that the tattoo was not substantially similar to the photograph and that while the “process images,” met the substantially similar test because they contained a reproduction of Sedlik’s photograph, such images were fair use. The Ninth Circuit affirmed the district court’s denial of Sedlik’s motion for judgment as a matter of law which was premised on the argument that the jury’s verdict was contrary to the only reasonable conclusion permitted by the evidence for both the intrinsic and extrinsic tests for substantial similarity.
At first glance, the decision may appear to be a straightforward affirmance of the jury verdict. But, the two concurring opinions may lead the way to a more consequential result. Both of these opinions sharply criticize the Ninth Circuit’s long-standing extrinsic / intrinsic test for substantial similarity, particularly the intrinsic prong’s focus on an ordinary observer’s subjective impression of a work’s “total concept and feel.” The concurring opinions describe the intrinsic test as offering juries with little guidance and being in tension with the Copyright Act, which protects expression but not concepts or the general “feel” of a work, stating that the test and the outcome of this case “distort copyright law.”
This case highlights a recurring issue in modern copyright litigation: how courts should analyze copying when a work is translated into a different medium. Here, the original work was a photograph, and the alleged infringing work was a tattoo rendered on human skin. The concurring judges emphasized that medium differences can obscure copying rather than negate it. A lay observer may perceive differences in texture, shading, or presentation that arise solely from the constraints of the new medium—even where the underlying protected expression has been faithfully reproduced. Under the current intrinsic test, those surface-level differences may be outcome-determinative and favor the alleged infringer.
The concurring opinions may provide a roadmap for future change. The concurring judges suggested that the Ninth Circuit should consider abandoning the intrinsic test altogether in favor of a more analytically grounded approach focused on filtering protectable expression from unprotectable elements.
In short, this decision shows that infringement claims can turn on a jury’s subjective impression of whether two works share the same overall “feel,” rather than on a structured analysis of what copyright law is intended to protect. The concurring opinions signal growing judicial discomfort with the current approach and invite reconsideration of whether the intrinsic test should continue to play such a decisive role. For practitioners, the decision highlights both the uncertainty created by jury-driven outcomes and the possibility that the Ninth Circuit’s substantial-similarity doctrine may be headed for meaningful change.
