IP Law Daily, COPYRIGHT—9th Cir.: Miles Davis tattoo by celebrity artist did not infringe photographer’s copyrighted image, (Jan 5, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

Six challenged works not substantially similar to copyrighted photograph; social media documentation of tattoo creation correctly found to be fair use.

In a precedential opinion, the U.S. Court of Appeals for the Ninth Circuit affirmed a jury verdict in favor of tattoo artist Katherine Von Drachenberg (Kat Von D), holding that her use of photographer Jeffrey Sedlik’s copyrighted image of Miles Davis in a tattoo, preparatory sketch, and related social media posts did not infringe Sedlik’s rights. The court found that six contested works, including the tattoo itself, were not substantially similar to Sedlik’s registered photograph under the “intrinsic” test for copyright infringement, and upheld the jury’s finding that four “Process Images” showing Sedlik’s photograph in the background while Von Drachenberg tattooed a client were protected by the fair use doctrine. The Ninth Circuit also affirmed the district court’s denial of Sedlik’s motions for summary judgment and judgment as a matter of law, with concurring opinions by Circuit Judges Wardlaw and Johnstone calling for the reevaluation or abandonment of the current extrinsic-intrinsic test as overly subjective and lacking in legal rigor (Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir. Jan. 2, 2026)).

Background. Jeffrey B. Sedlik is a professional photographer, photography professor, and copyright licensing expert. He is known for his 1989 photograph of Miles Davis, for which he holds a registered copyright and has licensed it for various uses, including editorial, commercial, and academic purposes.

Katherine Von Drachenberg is a celebrity tattoo artist, television personality, and founder of High Voltage Tattoo (HVT), a tattoo parlor in Los Angeles. Von Drachenberg is known for her realistic black-and-grey tattoos and has a substantial online following.

Sedlik’s photograph of Miles Davis was registered with the U.S. Copyright Office in 1994. The image features Davis in a studio-lit composition with distinctive visual choices, including specific wardrobe, lighting, camera angles, and the symbolic “Shh!” gesture. Sedlik alleged that his creative arrangement of otherwise unprotectable elements—such as Davis’s finger positioning, facial expression, and jewelry—constituted protectable expression under copyright law.

The allegedly infringing works consisted of (1) a tattoo of Miles Davis rendered by Von Drachenberg on the upper arm of her friend Blake Farmer, using the photograph as a reference; (2) a preparatory sketch of the photograph made by Von Drachenberg; and (3) four social media posts including progress images, a final tattoo image, an Instagram Story, and a light box tracing post. Four additional posts, referred to as the “Process Images,” directly included reproductions of the copyrighted photograph and were admitted by defendants to be substantially similar.

Sedlik sued Von Drachenberg, her corporation, Kat Von D, Inc., and HVT for copyright infringement in the Central District of California after discovering the tattoo and related social media posts. He sought summary judgment, arguing that the similarities between his photograph and the tattoo and other works were so overwhelming that no reasonable jury could find otherwise. The district court denied summary judgment, ruling that both the extrinsic and intrinsic similarity tests raised triable issues of fact.

At trial in January 2024, the jury viewed the tattoo in person on Farmer’s arm and heard testimony from Sedlik, Von Drachenberg, and others. Von Drachenberg testified that the tattoo was freehand shaded and not a literal replication. Although defendants conceded that the Process Images included the actual photograph and were thus substantially similar, they raised a fair use defense for those posts. The jury returned a verdict in favor of the defendants, finding that the six non-conceded works were not substantially similar and that the Process Images constituted fair use. The district court denied Sedlik’s post-trial motions for judgment as a matter of law and for a new trial. Sedlik appealed.

Substantial similarity. The Ninth Circuit held that the district court correctly denied Sedlik’s Rule 50(b) motion for judgment as a matter of law. The panel noted that copyright infringement requires proof of both copying and unlawful appropriation, the latter of which requires substantial similarity under both the extrinsic (objective) and intrinsic (subjective) tests. The extrinsic test, which is more amenable to summary judgment, filters out unprotectable elements. The intrinsic test, in contrast, asks whether an ordinary reasonable observer would find the two works substantially similar in their “total concept and feel.”

Citing Funky Films, Inc. v. Time Warner Ent. Co., 462 F.3d 1072 (9th Cir. 2006), and Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000), the court emphasized that the intrinsic test is uniquely suited to the jury and is not subject to judicial override unless the verdict is unsupported by any reasonable view of the evidence. Since the jury found no intrinsic similarity between the photograph and the six challenged works, the court affirmed without reaching the extrinsic prong.

Fair use. On the Process Images, the panel affirmed the jury’s fair use finding. The court rejected Sedlik’s argument that he was entitled to judgment as a matter of law on the fair use issue because he had not preserved the argument by raising it in a Rule 50(a) motion at trial. The panel also concluded that sufficient evidence supported the jury’s findings under two of the four statutory fair use factors (17 U.S.C. § 107)—namely, the purpose and character of the use, and the effect of the use on the market.

The jury could reasonably conclude that the Process Images had a different purpose than the original photograph, namely documenting the creation of a tattoo, and that any commercial benefit from social media engagement was indirect and insufficient to weigh against fair use. The appellate court found that Sedlik’s licensing history did not demonstrate market harm for social media use, particularly given the low-resolution and incidental display of the photograph in the background of the posts.

Concurring opinions. In separate concurring opinions, Circuit Judges Kim M. Wardlaw and Anthony D. Johnstone expressed concern with the court’s longstanding two-part substantial similarity framework. Judge Wardlaw urged the Ninth Circuit to “dispense” with the intrinsic test, criticizing its reliance on layperson perception of “total concept and feel,” a formulation she argued was incompatible with the Copyright Act’s exclusion of ideas and concepts from protection under 17 U.S.C. § 102(b). She warned that the test enables verdicts unmoored from legal standards and encourages unpredictable outcomes.

Judge Johnstone added that the intrinsic test has become “standardless” and “virtually devoid of analysis,” creating asymmetry between plaintiffs and defendants. He traced its evolution from Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970), and Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977), and concluded that its original role, to protect the combination of unprotected elements, has been eroded, leaving plaintiffs unable to win summary judgment even in clear cases.

Nonprecedential opinion. In a separate unpublished memorandum, the panel rejected Sedlik’s challenge to the jury instructions and evidentiary rulings. The court found no abuse of discretion in excluding Sedlik’s proposed expert testimony regarding tattoo industry licensing practices, concluding that his experience in photography licensing did not qualify him to testify on tattoo norms. The court also found that any errors in the jury instructions on fair use factors were harmless, given the parties’ concessions during closing arguments and the evidence presented at trial.

The Case is No. 24-3367.

Judge: Per Curiam.

Attorneys: William F. Patry (Quinn Emanuel Urquhart & Sullivan LLP) for Jeffrey B. Sedlik. Allen B. Grodsky (Grodsky Olecki & Puritsky LLP) for Katherine Von Drachenberg, Kat Von D, Inc., and High Voltage Tattoo.

Companies: Kat Von D, Inc.; High Voltage Tattoo

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