A federal appeals court has agreed to reconsider a high-profile copyright dispute between photographer Jeff Sedlik and celebrity tattoo artist Katherine Von Drachenberg, professionally known as Kat Von D, over a tattoo depicting jazz legend Miles Davis.
The Ninth Circuit Court of Appeals announced Tuesday that an 11-judge en banc panel will rehear the case in September, potentially reconsidering the legal framework used to evaluate copyright infringement claims. Chief Judge Mary Murguia vacated an earlier decision from January that had upheld a jury verdict finding Von Drachenberg’s tattoo was not substantially similar to Sedlik’s 1989 photograph.
The photograph in question shows Miles Davis with his index finger raised to his lips in a characteristic shushing gesture. Von Drachenberg created a tattoo based on this image in 2017 as a gift for Blake Farmer, a lighting technician who had worked on shoots for her makeup business. Farmer, a trumpet player himself, had expressed his admiration for the jazz icon, prompting Von Drachenberg to offer the tattoo.
The case has drawn attention to the complex legal standards used in copyright disputes. The Ninth Circuit currently employs a two-part test requiring both extrinsic analysis of objective similarities and intrinsic evaluation based on an ordinary observer’s perspective. The January panel, while ruling in Von Drachenberg’s favor, expressed significant concerns about this approach.
Judges Kim McLane Wardlaw and Anthony Johnstone wrote concurring opinions suggesting the current framework may distort copyright law. Wardlaw noted that the Supreme Court has never endorsed relying solely on an ordinary observer’s spontaneous impression without expert guidance. She argued that untrained observers might fail to recognize similarities between works in different media, particularly when comparing a photograph to a tattoo.
During the original trial, Von Drachenberg testified that she hadn’t charged for tattoos in over a decade and only created them for friends without payment. She argued her use of the photograph constituted fair use, representing her interpretation of the image for an entirely different purpose than the original work. She characterized the tattoo as fan art created for a friend who admired the musician.
Von Drachenberg, who gained prominence through reality television shows Miami Ink and LA Ink, told the jury that obtaining licenses for photographic references is not standard practice in the tattoo industry. The latter show was filmed at her High Voltage Tattoo studio in Hollywood.
Sedlik, however, maintains strict control over his copyrighted works and regularly monitors the internet for unauthorized use. He testified about a 2014 incident where he discovered another tattoo artist had used the same Miles Davis photograph. That artist received a retroactive license after apologizing, with Sedlik waiving a $5,000 licensing fee as a professional courtesy.
The photographer’s attorney, Bill Patry, expressed satisfaction with the decision to rehear the case, arguing that the Ninth Circuit should adopt a simpler and more predictable test for copyright infringement claims. He suggested the January panel was constrained by current precedent despite recognizing apparent copying.
Allen Grodsky, representing Von Drachenberg, stated he looks forward to presenting their arguments to the full panel.
The en banc review could have significant implications for how copyright infringement cases are evaluated in the Ninth Circuit, particularly those involving transformative works or different artistic media. The court’s decision may clarify when artistic interpretation crosses the line into copyright infringement and whether current legal tests adequately protect both original creators and derivative artists.
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