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It's always great when your two passions collide.  For me in this instance it's my love of jazz and my career in IP law.  In the case, Sedlik v. Von Drachenberg, 9th Cir., No. 24‑3367 (Jan. 2, 2026), the Ninth Circuit affirmed a jury verdict in favor of celebrity tattoo artist Katherine “Kat Von D” Von Drachenberg in a closely watched copyright dispute brought by photographer Jeffrey Sedlik over a tattoo based on Sedlik’s well-known portrait of Miles Davis. A link to the images of the photo and the tattoo can be seen here (<a href="https://www.courthousenews.com/kat-von-d-defends-use-of-miles-davis-photo-for-friends-tattoo/">Kat Von D defends use of Miles Davis photo for friend's tattoo | Courthouse News Service</a>). The panel left intact the jury’s finding of no infringement on the ground that the tattoo and photograph were not “substantially similar,” and emphasized that it would not substitute its view for the jury’s on this fact-intensive question. At the same time, two concurring judges forcefully questioned the Ninth Circuit’s long‑standing “intrinsic” similarity test, suggesting a more structured approach could have yielded a different outcome.

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The panel issued a per curiam opinion upholding the jury’s verdict that Von D’s tattoo did not infringe Sedlik’s photograph because the works were not substantially similar, underscoring the limited role of appellate courts in second‑guessing jury determinations on similarity. Judges Anthony D. Johnstone and Kim McLane Wardlaw concurred in the judgment but criticized the intrinsic test—which asks whether an ordinary, reasonable observer would find the overall concept and feel substantially similar without expert guidance—calling it “standardless” and inconsistent with copyright’s focus on protectable expression. Judge Johnstone wrote that it was “an understatement” to say the tattoo is substantially similar, but that the intrinsic test effectively compelled affirmance. Judge Wardlaw argued the test has never been endorsed by the Supreme Court and risks protecting spontaneous impressions rather than authors’ expression, proposing instead a filter-based analysis that distinguishes protectable from unprotectable elements—a shift she indicated could have produced a different infringement result in this case.

Sedlik sued Von D in 2021, alleging that her free tattoo for a friend infringed his iconic Miles Davis portrait, in what many observers described as the first federal case to squarely examine how copyright applies to tattoos. The district court denied both parties’ summary judgment motions in 2022, concluding Sedlik had not sufficiently articulated specific similarities and that fact questions regarding fair use—including transformation, commerciality, and market harm—were for a jury. In January 2024, the jury found no substantial similarity between the photograph and the tattoo, and thus no infringement; Sedlik appealed, arguing that infringement should have been resolved by the court rather than a “poorly‑instructed jury swayed by a celebrity defendant.” At July 2025 oral argument, members of the panel openly wrestled with the similarity finding, with Judge Wardlaw remarking that it “defies rationality” to say the works are not the same, but the panel ultimately affirmed because of the constraints of the intrinsic test and deference to jury verdicts.

Although the judgment favored Von D, the concurrences pose a significant question for future Ninth Circuit cases: should courts abandon the intrinsic test in favor of an analysis that filters unprotectable elements and focuses the similarity inquiry on protectable expression? Judge Wardlaw highlighted that the intrinsic test’s emphasis on the “total concept and feel” can obscure the core of copyright—protecting author's original expression—and leaves “notoriously tricky” issues, such as the human body as a medium, unresolved. Her proposed recalibration, which mirrors structured substantial-similarity frameworks in other circuits, signals potential en banc or future panel reconsideration of Ninth Circuit doctrine and suggests that a different test could change outcomes in close art‑reference scenarios.

For photographers, visual artists, and rightsholders, the affirmed judgment underscores the uncertainty inherent in jury‑driven similarity determinations under the intrinsic test, especially where reference‑based artwork and derivative mediums are involved. For tattooers, creative studios, and brands commissioning or collaborating with artists, the decision is not a carte blanche; it is a case‑specific win that may rest on a test key judges want to discard. If the Ninth Circuit revisits its similarity doctrine, a filter‑based approach could narrow the room for defense victories in close adaptation cases by focusing more precisely on protectable expression rather than overall impression.

From a litigation‑risk perspective, the ruling illustrates three durable points. First, infringement and similarity often remain jury questions; appellate deference to verdicts is substantial, even where appellate judges express skepticism. Second, fair use questions will frequently proceed to trial where transformation, market substitution, and commerciality are disputed factually. Third, cases involving tattoos and other nontraditional canvases spotlight novel remedial and evidentiary issues that standard instructions may not fully capture—an institutional gap the concurrences implicitly flag.

Takeaways for risk management and licensing strategy

Creators and licensees should treat reference use as a licensing and documentation problem before it becomes a litigation problem. Commissioning parties, studios, and platforms can materially reduce exposure by implementing reference‑image protocols, usage clearance, and contracting norms that anticipate derivative‑work and publicity‑rights overlays. On the rightsholder side, photographers and visual artists should sharpen their enforcement posture with clear articulation of protectable elements and market‑harm theories tailored to the alleged adaptation medium, recognizing that generic similarity assertions may not survive dispositive motions or persuade juries.

For clients operating in or adjacent to the tattoo, fashion, and brand‑collaboration ecosystems, consider the following action items aligned to the issues spotlighted in Sedlik:

Adopt intake and documentation practices that memorialize the provenance of reference materials, the scope of permission, and the intended use, especially where human‑body display or public social‑media promotion is contemplated.

Calibrate license grants to anticipated adaptations and derivative uses, including transformations across mediums, and incorporate explicit allocations of risk, indemnities, and evidence‑preservation obligations.

For brand and platform collaborations, ensure marketing and content workflows include pre‑publication IP clearance and escalation paths for reference‑based artwork.

Strengthen trial readiness by developing expert‑supported frameworks distinguishing protectable from unprotectable elements, anticipating that Ninth Circuit doctrine on similarity may evolve toward a filter‑based analysis.

Sedlik v. Von Drachenberg affirms a fact‑specific defense win while putting Ninth Circuit similarity doctrine on the reform agenda. Until the court revisits the intrinsic test, trial outcomes will likely continue to hinge on jury impressions in close art‑reference cases, with limited room for appellate correction. Clients should not rely on this decision as a broad safe harbor; they should tighten licensing, documentation, and clearance practices now to control risk in a landscape where the governing test—and with it, outcomes—may change.

Michael Best’s IP Business Solutions Group advises clients across copyrights, licensing, software, life sciences, manufacturing, and consumer brands on inbound and outbound licensing, joint development, content and data use, and IP risk management, including clearance and dispute resolution.

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Defendant Tattoo Artist Prevails in Miles Davis Tattoo Suit

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