Copyright Developments

Background

In February 2021, Sedlik sued Von D, alleging that she infringed his copyright by using his Miles Davis photograph as the reference for a tattoo, and by posting images of the tattoo and its creation on social media. Von D did not dispute that she relied on Sedlik’s photograph as a reference image.

The case proceeded to trial in January 2024. The jury found that Von D’s tattoo, preliminary sketch, and most of her social media posts were not substantially similar to Sedlik’s photograph. Although the jury concluded that four social media posts showing Von D tattooing her client, with Sedlik’s photograph visible in the background, were substantially similar, it nonetheless found that those posts were protected by fair use. The district court denied Sedlik’s post-trial motion for judgment as a matter of law, and Sedlik appealed both that denial and the district court’s earlier denial of his motion for summary judgment.

The Appeal

On appeal, Sedlik argued that the district court erred in denying his motion for summary judgment and in denying his renewed motion for judgment as a matter of law, which sought to overturn the jury's verdict.

In support of his appeal of the district court’s summary judgment ruling, Sedlik argued that the district court had misapplied the extrinsic test. The Ninth Circuit declined to review the district court’s denial of summary judgment, holding that Sedlik’s motion depended on disputed factual issues that were ultimately resolved by the jury. Because the motion did not present a purely legal question independent of those facts, it was not appropriate for appellate review.

In support of his appeal of the district court’s denial of his motion for judgment as a matter of law, Sedlik contended that no reasonable juror could find that the relevant works were not substantially similar to Sedlik’s photograph. However, the Ninth Circuit declined to disturb the jury’s finding of no substantial similarity. The panel reiterated the Ninth Circuit’s requirement that a copyright plaintiff prove intrinsic and extrinsic similarity in establishing substantial similarity.

The extrinsic test is an objective comparison of the works that filters out unprotectable elements, and the intrinsic test is a subjective inquiry which asks whether an ordinary observer would perceive the works as sharing the same “total concept and feel.”

Applying the highly deferential standard governing post-verdict review, the Court explained that reversal is appropriate only where the evidence suggests a single reasonable conclusion contrary to the jury’s verdict. Because the jury found no intrinsic similarity between the works, the panel declined to disturb that finding or to reach the extrinsic test. Doing so, the Court reasoned, would improperly “‘supplant[] the jury's subjective interpretation with [the court’s] own.’”[1] (citation omitted)

Concurring Opinions

Two concurring opinions questioned the Ninth Circuit’s substantial similarity framework.

Judge Wardlaw argued that the intrinsic test’s focus on total concept and feel conflicts with the Copyright Act’s exclusion of ideas and concepts from protection and suggested getting rid of the test altogether.

Judge Johnstone emphasized that the intrinsic “total concept and feel” test has drifted from its historical and statutory foundations and now invites subjective, unguided jury determinations untethered from copyright’s core principles.  This test also makes it nearly impossible for a copyright owner to successfully appeal a jury’s verdict of non-infringement.

The concurring opinions could invite en banc review or future changes to the Ninth Circuit’s substantial similarity framework.  In the meantime, more tattoo artists could be emboldened to use iconic photos for their artwork and associated social media posts.

For more information, please contact Avanthi M. Cole or your CLL attorney.

[1]  In a separate opinion, the Court affirmed the jury’s finding that the use of the images in the social media posts was a fair use.  It reasoned that the jury’s verdict was supported by sufficient evidence, including evidence that the images had a different “purpose and character” than Sedlik’s photograph.  It also concluded that the use of the images was unlikely to affect the potential market for Sedlik’s photograph.