Sedlik v. Von Drachenberg — Ninth Circuit Grants Rare En Banc Rehearing in Kat Von D Tattoo Copyright Case

Background

Photographer Jeffrey Sedlik sued tattoo artist Kat Von D (Katherine Von Drachenberg) and her studio, High Voltage Tattoo, for copyright infringement. Sedlik owned a celebrated 1989 photograph of jazz legend Miles Davis, and Sedlik alleged that Kat Von D’s photorealistic tattoo of Davis — applied to a client and depicted in social media posts — infringed his copyright. At trial in the Central District of California, the jury found that the tattoo and several related works were not substantially similar to the photograph, and that four social media images showing the tattoo-in-progress (which directly reproduced the photo) were a fair use. Judge Dale Fischer denied Sedlik’s post-trial motions, and Sedlik appealed.

In January 2026, a three-judge Ninth Circuit panel affirmed the jury’s verdict in a per curiam opinion. The panel declined to disturb the jury’s findings on the intrinsic (subjective) similarity test, holding that the jury’s conclusion — that an ordinary reasonable observer would not find the works similar — was not contrary to the only reasonable conclusion permitted by the evidence. Because the jury found no intrinsic similarity, the panel did not reach the extrinsic test.

But the panel’s concurrences were striking. Both Judge Wardlaw and Judge Johnstone wrote separately to call out what they saw as fundamental flaws in the Ninth Circuit’s copyright doctrine. Judge Johnstone (joined by Wardlaw) argued that the court’s “intrinsic test,” developed to protect full expression, has over time become a “standardless” inquiry that invites juries to reach copyright verdicts “unconstrained by copyright law.” Judge Wardlaw went further, suggesting the intrinsic test should be dispensed with altogether and the circuit’s doctrine realigned with the principles of the Copyright Clause and the Copyright Act.

The Court’s Action: En Banc Rehearing Granted

On June 9, 2026, the Ninth Circuit vacated the panel’s January opinion and ordered the case reheard by the full court (en banc). Chief Judge Mary Murguia issued the order. En banc rehearings are rare in the Ninth Circuit — typically granted only when a case involves an important legal question or when a panel decision conflicts with prior Ninth Circuit authority or Supreme Court precedent.

The grant of en banc review signals that a majority of active Ninth Circuit judges believe the substantial similarity doctrine deserves a fresh look. The Ninth Circuit’s “total concept and feel” approach — and its bifurcated intrinsic/extrinsic test — have long been criticized as more permissive to defendants (allowing juries to acquit based on a holistic gestalt comparison) and more unpredictable than the approaches used in other circuits. The two concurrences by the panel may have been an intentional invitation for en banc review.

Key Takeaways

• The Ninth Circuit’s en banc grant is a major signal that the court may significantly revise — or scrap — its “intrinsic test” for copyright substantial similarity, which has been law in the circuit for over 50 years.
• At stake is the question of how much room juries should have to reach their own “feels like” conclusions about similarity versus being guided by legally defined criteria — a tension with real stakes in cases involving art, photographs, tattoos, and creative adaptations.
• The eventual en banc decision could affect the legal standards for all Ninth Circuit copyright cases, including film, music, fashion, and AI-generated works that raise substantial similarity questions.
• Until the en banc court issues a new opinion, the January 2026 panel opinion is vacated; the case is back before the full court.

Why It Matters

The Sedlik/Kat Von D case has become a focal point for the copyright community’s frustration with Ninth Circuit similarity doctrine. Photographers, illustrators, and creators’ rights advocates have argued that the intrinsic test’s subjective, gestalt standard lets juries acquit infringers based on stylistic differences that don’t really undermine the underlying copying. Tattoo artists and fair-use proponents counter that giving copyright holders control over creative reinterpretations in a different medium would stifle artistic expression. The en banc court’s decision — expected sometime in 2026 or 2027 — could set a new standard that ripples across all creative industries in the Ninth Circuit’s expansive jurisdiction.

Surfaced via Law360 IP.