9th Circ. Copyright Ruling Highlights Doubts On Intrinsic Test

Why It Matters

If the Ninth Circuit curtails the intrinsic test, appellate courts could gain greater authority to overturn jury verdicts, altering the risk calculus for both plaintiffs and defendants in copyright cases. This potential doctrinal shift could affect settlement dynamics and litigation strategies across the tech‑creative industries.

Key Takeaways

• Ninth Circuit affirmed noninfringement, but judges questioned intrinsic test.
• Intrinsic test relies on jury’s subjective “total concept and feel” impression.
• Critics argue test limits appellate review and may let copying escape liability.
• Shift could force stronger extrinsic‑test focus and alter settlement dynamics.
• Other circuits use different frameworks, hinting at possible Ninth Circuit reform.

Pulse Analysis

The Sedlik decision revives a long‑standing debate over the Ninth Circuit’s two‑part similarity analysis. While the extrinsic test offers an objective, expert‑driven comparison of protectable elements, the intrinsic test hands the ultimate similarity judgment to a jury’s holistic impression. Judges Wardlaw and Johnstone argue that this handoff creates a blind spot for appellate courts, allowing potentially clear copying to slip through simply because a lay audience does not perceive a "total concept and feel" match. Their critiques echo concerns raised in other jurisdictions where courts have moved toward a more unified, legally grounded similarity framework.

For intellectual‑property practitioners, the possible erosion of the intrinsic test reshapes case‑by‑case strategy. Defendants can no longer rely as heavily on steering disputes toward a jury trial where subjective impressions dominate; instead, they must build robust extrinsic‑test records with detailed expert testimony. Plaintiffs, meanwhile, may need to emphasize objective copying evidence early, anticipating that appellate courts could scrutinize jury findings more closely if the intrinsic test is narrowed or eliminated. This shift could increase the importance of summary‑judgment motions that focus on the extrinsic analysis, potentially reducing the number of cases that reach a jury.

The broader industry impact could be significant. A move toward a more objective similarity standard may raise the bar for proving infringement, encouraging earlier settlements but also prompting creators to be more vigilant about protecting expressive elements. As other circuits already employ alternative frameworks, the Ninth Circuit’s potential realignment could harmonize federal copyright jurisprudence, offering clearer guidance for tech firms, media companies, and artists navigating the complex terrain of digital and analog works.