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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.

Judges Question the Test’s Future

Although the panel affirmed the outcome, two judges issued separate concurring opinions sharply criticizing the intrinsic test itself.

U.S. Circuit Judge Kim McLane Wardlaw wrote that the test allows jurors to reach infringement decisions without expert guidance and conflicts with Supreme Court precedent emphasizing careful separation of protected expression from unprotected ideas.

“The intrinsic test is a creation of our court,” Wardlaw wrote. “The Supreme Court has never said that the ordinary observer’s spontaneous impression of the ‘total concept and feel’ of the works, without expert guidance, should be dispositive.”

Judge Anthony Johnstone, in a separate concurrence, traced the origins of the intrinsic test to Ninth Circuit cases from the 1970s and argued that its evolution has distorted copyright analysis by insulating verdicts from meaningful review.

“What began as a factual test for determining substantial similarity of an idea’s overall expression has become a subjective test based on the jury’s own impression,” Johnstone wrote, adding that the doctrine tends to favor defendants and forces courts to “rubber-stamp” verdicts.

Applying that critique to the present case, Johnstone said the similarity between the tattoo and the photograph was undeniable.

“It is an understatement to say that the tattoo is substantially similar to Sedlik’s photograph — it is, as Von Drachenberg’s tattoo shop put it, ‘100% exactly the same,’” he wrote. “In my view, a test that produces such a result cannot be right.”

Wardlaw agreed, stating that if the court were free to reformulate the test, she would have concluded that the tattoo infringed Sedlik’s copyright.