A federal appeals court on Friday upheld a jury verdict clearing tattoo artist Kat Von D of copyright infringement in a dispute over a tattoo inspired by a well-known photograph of jazz legend Miles Davis, while two judges openly questioned whether a key Ninth Circuit copyright test should continue to exist.
In a published, unanimous ruling, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed decisions by a California district court rejecting photographer Jeffrey Sedlik’s attempts to overturn a jury verdict that found no infringement. The jury had concluded that Von D’s tattoo, related sketches, and social media posts did not unlawfully copy Sedlik’s 1989 photograph and that the online posts qualified as fair use.
The panel also declined to revisit the jury’s application of the Ninth Circuit’s long-standing “intrinsic” test for substantial similarity, citing decades of precedent that limit appellate review of such findings.
“For that reason, we are reluctant to reverse a jury’s application of the intrinsic test,” the court wrote. “We therefore decline to disturb the jury’s implicit findings as they pertain to the intrinsic test for substantial similarity.”
Under Ninth Circuit law, copyright infringement claims are evaluated using a two-step approach. First, the “extrinsic” test objectively compares protected expressive elements of the works. If that threshold is met, the “intrinsic” test asks whether an ordinary observer would view the overall concept and feel of the two works as substantially similar, a determination traditionally left to the factfinder.
Because the jury applied that framework, the panel said it would not substitute its own judgment, noting that no Ninth Circuit verdict has ever been overturned based solely on disagreement with a jury’s intrinsic analysis.
