On January 2, 2026, a Ninth Circuit panel affirmed the jury verdict in Sedlik v. Von Drachenberg, — F. 4th. —–, 2026 WL 17166 (9th Cir. Jan. 2, 2026), which found that defendant celebrity tattoo artist Katherine Von Drachenberg had not infringed plaintiff photographer Jeffrey Sedlik’s copyrighted photograph of Miles Davis. Of note, however, were the criticisms of the “flawed” extrinsic-intrinsic test for substantial similarity outlined by Judges Wardlaw and Johnstone in their concurrences to the decision. Sedlik has since indicated his intention to petition for rehearing en banc, which may present an opportunity for the Ninth Circuit to revisit this longstanding substantial similarity test.

Sedlik initiated his copyright infringement lawsuit after Von Drachenberg used Sedlik’s photograph of Davis as the basis of a tattoo for her client. Von Drachenberg also drew a sketch of the Davis photograph and documented the tattooing process through several social media posts. The case went to trial in January 2024, where the jury ultimately found that the tattoo, the sketch and most of the social media posts were not infringing as they were not substantially similar to Sedlik’s copyrighted photograph. Similarly, the jury found that social media posts containing a reproduction of the Davis photograph were fair use, although Von Drachenberg had stipulated that they were substantially similar.

The Ninth Circuit applies a two-part extrinsic-intrinsic test for substantial similarity. The extrinsic test examines the underlying elements of the plaintiff’s and defendant’s works to determine whether there is substantial similarity in the ideas underlying the two works. The intrinsic test asks the jury to examine the “total concept and feel” of the respective works to determine whether there is substantial similarity in their expressions.

After the trial, Sedlik moved for judgment as a matter of law requesting that the court set aside the jury’s verdict on substantial similarity. However, the district court upheld the verdict, finding that intrinsic analysis was a question of fact for the jury it was disinclined to overturn. The Ninth Circuit was similarly reluctant to reverse the jury’s application of the intrinsic test.

Nevertheless, Judges Wardlaw and Johnstone outlined their criticisms of the extrinsic-intrinsic test in their concurring opinions. Judge Wardlaw highlighted the “complex legal questions” present in this lawsuit that were displaced by the jury’s intrinsic analysis, which largely singlehandedly decided the case. Judge Wardlaw also pointed out how the directive of the intrinsic test – namely, to look at the “total concept and feel” – was incongruous with the Copyright Act, which denies protection to an idea or a concept. Instead, Judge Wardlaw endorsed a substantial similarity test that focused on filtering protectable and unprotectable elements, in lieu of inquiry into a work’s “total concept and feel.”

Similarly, Judge Johnstone emphasized how the intrinsic test’s subjectivity left juries without guidance and the law without predictable verdicts. Judge Johnstone also outlined how the intrinsic test created procedural obstacles for copyright plaintiffs, as it left courts fundamentally unable to decide cases as a matter of law on summary judgment. Both judges concluded their opinions by calling for the end of the intrinsic test, which may illuminate its fate should the Ninth Circuit grant Sedlik’s petition for rehearing en banc.