The Ninth Circuit rang in the new year with two opinions in Sedlik v. Von Drachenberg, the long-running photography-meets-tattoo copyright case involving Kat Von D and an iconic image of Miles Davis. In 2024, a Los Angeles jury found no infringement as to Von D’s tattoo and sketch, and fair use as to certain social-media “process posts,” giving Von D a clean victory over photographer Jeffrey Sedlik.
On January 2, the Ninth Circuit affirmed—in a published per curiam opinion on substantial similarity (read here) and an unpublished memorandum on fair use (here). But in doing so, two judges voted to uphold an outcome they said was wrong, using the occasion to question whether the Ninth Circuit’s fifty-year-old “total concept and feel” test—the doctrine that compelled that result—should survive at all.
The concurrences are nothing short of extraordinary. Judges Kim Wardlaw and Anthony Johnstone wrote separately—and joined each other’s opinions—to argue that the Ninth Circuit’s intrinsic test for substantial similarity is fundamentally broken. Judge Wardlaw called for “dispensing with it altogether,” while Judge Johnstone traced the doctrine’s drift over time and bluntly concluded that “a test that produces such a result cannot be right.”
These aren’t dissents. But they read like a roadmap for en banc review—and an unmistakable invitation to take it.
The Wombat has Rule 5 Sunday: Hello, Nurse! up and garnering clicks at The Other McCain.
