Ninth Circuit Inks Affirmance for Kat Von D But Tattoos Bullseye on Intrinsic Test

On January 2, 2026, a Ninth Circuit panel affirmed a jury verdict that tattoo artist Kat Von Drachenberg’s (aka Kat Von D) photorealistic tattoo did not infringe photographer Jeff Sedlik’s 1989 image of Miles Davis. Sedlik v. Katherine Von Drachenberg, ___ F. 4th.___, No. 24-3367, 2026 WL 17166 (9th. Cir. Jan. 2, 2026).

Overshadowing the largely procedural affirmance itself are two concurrences from Judges Wardlaw and Johnstone, who harshly criticized the second prong of the Ninth Circuit’s current substantial similarity standard—the “intrinsic test.” Although the intrinsic test has come under fire before, these opinions may augur significant changes ahead in the Ninth Circuit. Such a reconsideration of the Ninth Circuit’s substantial similarity test would have significant ramifications for copyright litigants and stakeholders.

The Road to the Ninth Circuit

In 1989, Sedlik took an iconic photograph of jazz musician Miles Davis. Sedlik exercised creative control over its composition, directing Davis and making deliberate choices about lighting and camera angles. Sedlik registered the photograph with the U.S. Copyright Office in 1994, and has since licensed it for commercial and non-commercial uses.

In 2017, tattoo artist and reality TV star Von Drachenberg agreed to tattoo Davis onto her friend Blake Farmer. Farmer provided Sedlik’s photograph for inspiration and Von Drachenberg used the photograph as a stencil, though the tattoo was mostly completed by freehand shading. Von Drachenberg posted images on social media chronicling the tattoo’s progress, four of which showed Sedlik’s original photo in the background.

Sedlik saw Von Drachenberg’s posts and filed a copyright infringement action in the Central District of California. The district court denied Sedlik’s motion for summary judgment and the case proceeded to trial in January 2024. At trial, the jury ruled in favor of Von Drachenberg, finding that six of the challenged works—a tattoo, a sketch, and four social media posts—were not substantially similar to the photograph.

Von Drachenberg stipulated that the four other posts with copies of the original photograph were substantially similar to Sedlik’s image. The jury, however, still concluded that the four posts qualified as fair use and did not infringe. The district court denied Sedlik’s motion for judgment as a matter of law, finding that the intrinsic test is “uniquely suited for determination by the trier of fact.” Sedlik appealed to the Ninth Circuit.

The Ninth Circuit’s Affirmation: Why the Jury’s Verdict Stood

The Ninth Circuit affirmed in a pair of opinions, which included a published per curiam opinion and an unpublished memorandum. The per curiam opinion affirmed the jury’s verdict that Von Drachenberg’s tattoo, pre-tattoo sketch and four social media posts were not substantially similar to Sedlik’s photo. The unpublished memo affirmed that Von Drachenberg’s four other social media posts with reproductions of Sedlik’s photo were protected by the fair use doctrine.

The Ninth Circuit panel declined to review Sedlik’s summary judgment motion, finding that a district court’s decision to deny a motion for summary judgment is only reviewable on appeal if the judgment involves a “purely legal question.” Here, the panel found the summary judgment motion dealt with “multiple triable issues of fact as to substantial similarity and fair use,” and did not qualify for appellate review.

The panel also declined to overturn Sedlik’s motion for judgment as a matter of law because Sedlik failed to prove that the jury’s verdict was “contrary to the only reasonable conclusion permitted by the evidence.” It noted that the intrinsic test’s focus on the layperson made it inappropriate to “disturb the jury’s implicit findings.”

Sedlik argued that a recent exception to the substantial similarity inquiry justified overturning the district court, but the panel disagreed. In the 2017 case Unicolors Inc. v. Urban Outfitters, Inc., the Ninth Circuit held that, when the similarities between two works are “overwhelming,” judges can grant motions for summary judgment on substantial similarity without applying the extrinsic or intrinsic tests. 853 F.3d 980 (9th Cir. 2017). Here, the court clarified that Unicolors applies only to pre-trial motions for summary judgment. Once a jury reaches a verdict, applying the Unicolors exception would mean “supplanting the jury’s subjective interpretation with [the court’s] own.” So, whether by exception or by examining the facts, the panel confirmed that under existing Ninth Circuit precedent, a jury’s application of the intrinsic test will rarely be disturbed.

Calls for Change: Concurrences Take Aim at the Intrinsic Test

Two panel members, Judge Kim McLane Wardlaw and Judge Anthony D. Johnstone, published concurring opinions criticizing the intrinsic test and called for it to be replaced.

Copyright owners seeking to prove unlawful copying must prove that their work and the allegedly infringing work are substantially similar. In the Ninth Circuit, the test for substantial similarity is divided into two prongs—the extrinsic test (based on objective elements) and the intrinsic test (a subjective standard, based on the total concept and feel)—each of which must be proven to establish liability.  

Both Judges Wardlaw and Johnstone agreed that the per curiam opinion correctly applied “the current state of [Ninth Circuit] case law” but wrote that the intrinsic test should be jettisoned. Joining Judge Wardlaw’s concurrence, Judge Johnstone stated that, “it is time to discard the intrinsic test and replace it with a legal rule that offers more consistent and even-handed protection to copyrighted works.”

Judge Wardlaw identified two main weaknesses—jury confusion caused by a lack of expert testimony and a fundamental disconnect between the Ninth Circuit’s test and the Supreme Court’s copyright doctrine. 

1. First, she observed that the intrinsic test is flawed because it asks juries to decide whether two works share the same “total concept and feel” without hearing expert testimony. This is particularly problematic when the alleged infringement is between different media, such as a photograph and a tattoo, where inherent differences like the effect of ink on skin inevitably arise even in cases of infringement.
2. Second, she noted that the Supreme Court has never applied the intrinsic test; instead, its precedent suggests courts should filter out unprotected ideas and concepts rather than rely on an “ordinary observer’s” impression of the whole work. While Judge Wardlaw acknowledged that a jury’s perceived similarity can be relevant, she emphasized that its absence should not, by itself, resolve the question of whether infringement occurred.

Judge Johnstone agreed with Judge Wardlaw’s criticisms and offered two more of his own. 

1. First, he offered a history of the Ninth Circuit’s long road to the present state of substantial similarity, and explained how the extrinsic and intrinsic tests both shifted from their original purpose. He explained that the extrinsic test had originally been limited to discrete elements, while the intrinsic test had analyzed how those elements combine. Now, the extrinsic test does the work of two tests by evaluating both discrete elements and determining how those discrete elements combine. The new intrinsic test, on the other hand, involves no new analysis, relying entirely on the jury’s subjective experience.
2. Second, he criticized the intrinsic test for producing inconsistent, unreviewable results. Because the intrinsic test relies on subjective impressions, he wrote, it shifts the jury away from its fact-finding role—even though, as Judge Johnstone noted, “a jury’s job is to find facts, not feelings”—making verdicts difficult to review on appeal and limiting the availability of summary judgment.

Constrained by the current test, both Judge Wardlaw and Judge Johnstone concurred with the judgment—though their opinions strongly suggest how they might have ruled otherwise—and agreed that the intrinsic test should be abandoned in favor of a legal rule that provides “more consistent and even-handed protection to copyrighted works.”

What it Means for Future Copyright Litigants

Although the contours of an alternative approach remain uncertain, the concurrences suggest a move towards a more formal, less vibes-based analysis. Judge Wardlaw wrote that “[a] better solution, in my view, would be to focus the test on the filtration of protectable and unprotectable elements, and remove any inquiry into a work’s ‘total concept and feel.’” This would no longer turn on an ordinary observer’s subjective impression; instead, it would define infringement through the individual components of the whole piece, moving from holistic impressions to a granular, element-by-element analysis.

Replacing the intrinsic test with a formal analysis would also shift the balance between defendants and plaintiffs in Ninth Circuit copyright law. Under the current framework—as Judge Johnstone explained—defendants have a strong advantage. Courts almost never grant plaintiffs’ summary judgment motions due to the subjective focus of the intrinsic test, yet a jury’s no-infringement verdict under the intrinsic test has never been reversed (it being the province of the fact finder to make such a subjective judgment). The concurrences lamented that even where infringement seems obvious—as, they suggested, in this case—“the intrinsic test can divert the jury’s attention away from objectively substantial copying of protected expression toward trivial differences, resulting in an inscrutable no-infringment verdict.”

If the Ninth Circuit shifts toward an objective, element-based analysis—as in the Second Circuit—it could render outcomes more consistent and make summary judgment more accessible for plaintiffs, while reducing juries’ reliance on subjective impressions that have historically favored defendants. However, that would require the Ninth Circuit to consider the issue en banc, with a full panel of judges. Given Judge Wardlaw’s and Johnstone’s forceful concurrences, they may find willing compatriots.