Ink, Images, and the Intrinsic Test: What the Kat Von D Ruling Means for Artists
New year, new art law decisions. Last year, Jeffrey Sedlik (a photographer) sued Kat Von D for copyright infringement for copying his photograph in making a tattoo. The Sedlik lost at the district court level and he appealed the 9th Circuit which recently issued a decision with Sedlik v. Von Drachenberg, No. 24-3367, 2026 WL (9th Cir. Jan. 2, 2026).
The issue on appeal was whether Sedlik was entitled to summary judgment and judgment as a matter of law on the issue of substantial similarity. The Court explained the test for substantial similarity is a two-part test. The first part "assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff's expression." The second part "test[s] for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance."
The court emphasized that the intrinsic test is reserved for the finder of fact, while the extrinsic test may, when appropriate, be determined as a matter of law at an earlier stage of litigation. see Funky Films, Inc. v. Time Warner Ent. Co., 462 F.3d 1072, 1076-77 (9th Cir. 2006), overruled on other grounds by Skidmore, 952 F.3d 1051. Both tests must be satisfied for the works to be deemed substantially similar.
The Court affirmed the denial of Sedlik’s motion for summary judgment reasoning that the first part of the substantial similarity test was not a purely legal question. The court also affirmed the denial of Sedlik’s motion for summary judgment reasoning the application of the first part of the test was a triable issue for the jury and reversing it would be tantamount to "supplanting the jury's subjective interpretation with [our] own,"
What should artists take away from this decision? Mainly, that anything can happen at the trial level. The same set of facts could absolutely produce a different result in another jurisdiction. Second, since copyright case as highly fact specific, it unlikely that decisions on key issues (like substantial similarity or fair use) would be reversed on appeal.