Kat Von D Tattoo Case Headed for En Banc Review

Key Takeaways

• Ninth Circuit orders en banc rehearing of *Sedlik v. Von Drachenberg*
• Panel opinion vacated, “total concept and feel” test reopened
• Potential outcomes: abolish, merge, or downgrade intrinsic similarity test
• Decision could reshape copyright litigation across the West Coast
• Judges say intrinsic test is “virtually devoid of analysis”

Pulse Analysis

The *Sedlik v. Von Drachenberg* dispute began when celebrity tattoo artist Kat Von D reproduced a photographer’s image of jazz legend Miles Davis on a client’s skin. Although a Los Angeles jury concluded there was no infringement, a three‑judge panel affirmed that finding, while two concurring judges openly questioned the reliability of the “total concept and feel” intrinsic test. Their criticism set the stage for the Ninth Circuit’s unprecedented move to rehear the case en banc, signaling judicial willingness to confront a doctrine that has guided copyright similarity analysis for half a century.

The “total concept and feel” test, introduced in the 1970s, asks courts to assess whether two works share an overall impression, beyond discrete elements. Critics argue the standard is vague, leading to inconsistent rulings and unpredictable outcomes for creators. By vacating the panel opinion, the Ninth Circuit invites a fresh examination of whether the intrinsic inquiry should be eliminated, folded into the extrinsic analysis that filters unprotectable ideas, or merely treated as evidentiary support. Such a shift could bring greater analytical clarity and reduce reliance on subjective artistic judgments.

For businesses, artists, and licensors operating on the West Coast, the court’s eventual decision will have immediate practical consequences. A stricter, more objective similarity framework could lower litigation risk for tattoo studios, photographers, and multimedia producers, while a relaxed standard might broaden protection for original expression. Stakeholders should monitor the en banc proceedings closely and consider revisiting risk‑management strategies, including clearer licensing agreements and more rigorous documentation of creative processes, to adapt to any forthcoming doctrinal changes.