The Ninth Circuit granted en banc rehearing in Sedlik v. Von Drachenberg, vacating the panel opinion and putting “total concept and feel” on the chopping block.
Back in January, I wrote that the concurrences in Sedlik v. Von Drachenberg, the long-running photography-meets-tattoo copyright case, read like “a roadmap for en banc review—and an unmistakable invitation to take it.” The court has now accepted that invitation. Today’s order vacates the panel opinion and reopens the circuit’s fifty-year-old “total concept and feel” test for substantial similarity.
If you’re just tuning in, Kat Von D traced photographer Jeffrey Sedlik’s photo of Miles Davis, transferred a stencil, and inked the tattoo with the photo sitting beside her. Her shop called the result “100% exactly the same.” A Los Angeles jury found no infringement, and a three-judge panel affirmed—but two of the judges wrote published concurrences questioning the test that produced that result, with Judge Wardlaw calling the intrinsic inquiry “virtually devoid of analysis” and urging the court to consider scrapping it altogether.
As I noted at the time, the doctrine’s critics had been making this argument for years. Now a majority of the Ninth Circuit’s nonrecused active judges have voted to rehear it.
Among the options on the table: the court could abolish the intrinsic test, merge it into the extrinsic analysis so the works are compared only after unprotectable elements are filtered out, or downgrade it from a dispositive question to mere evidence.
Whichever path the court takes will reshape how substantial similarity is litigated across the West Coast. But the bigger story is that the question got this far at all. For the first time, the people in a position to fix the test seem to agree that it’s broken.
As always, let me know what you think in the comments below or @copyrightlately on social media.
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