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Does a tattoo impressed by {a photograph} have the identical feel and look as the unique? That query is on the coronary heart of a longstanding copyright take a look at that may very well be referred to as into query in an uncommon “en banc” listening to between photographer Jeffery Sedilk and movie star tattoo artist Kat Von D or Katherine von Drachenberg.
The US Ninth Circuit Court of Appeals has ordered an en banc hearing of Jeffery B. Sedlik v. Katherine von Drachenberg, aka Kat Von D. An en banc listening to is a uncommon trial that features your entire bench of judges, moderately than a small panel.
The case stems from {a photograph} that Sedlik took in 1989 of singer Miles Davis, a black-and-white picture with the jazz icon’s finger pressed to his lips. Sedilk claims that Kat Von D, a tattoo artist perhaps best known for her appearances on the TV shows LA Ink and Miami Ink, violated copyright when she copied the photograph onto an upper-arm tattoo.
In behind-the-scenes photos of the tattoo process shared on social media, Von D is seen using Sadlik’s photograph as a reference. The tattoo artist was done for a friend free of charge, considered one of Von D’s legal professionals’ arguments that utilizing the picture was truthful use, together with variations within the lighting and background.
The case was initiated in 2021, however earlier this 12 months, a courtroom of appeals sided with the decrease courts in agreeing that the tattoo didn’t infringe on the {photograph}.
However, the earlier instances sided with the tattoo artist utilizing a copyright take a look at often called the “intrinsic test.” The intrinsic test, which has been used for almost fifty years by the Ninth Circuit courtroom, asks if an strange individual would think about the 2 works in query to have the identical “total concept and feel.”
While the ninth Circuit Court of Appeals didn’t facet with the photographer in a January 2026 determination, two of the three judges on the panel questioned the intrinsic take a look at precedent, and one choose urged that the courtroom ought to rethink utilizing the intrinsic take a look at.
The intrinsic take a look at has been beforehand criticized for counting on an “average observer” opinion on the appear and feel of a piece. The subjective nature of the rule can result in juries ruling that instances with a robust extrinsic take a look at similarities – an goal take a look at that appears at whether or not or not the works are considerably related – have a considerably totally different really feel and, because of this, usually are not a violation of copyright.
While the courtroom ordering an en banc listening to doesn’t imply that the “intrinsic test” can be thrown out, it does imply that the Ninth Circuit courtroom thought the case was controversial sufficient to be thought-about by an 11-judge panel as a substitute of three.
As the American Society of Media Photographers notes, out of the 625 instances submitted for a possible en banc listening to, solely 9 courtroom instances have been heard by the total panel in 2024. An en banc listening to isn’t a standard incidence, so the ruling may very well be one for photographers – and all artists – to observe.
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