Does a tattoo inspired by a photograph have the same look and feel as the original? That question is at the heart of a longstanding copyright test that could be called into question in an unusual “en banc” hearing between photographer Jeffery Sedilk and celebrity 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 hearing is a rare trial that includes the entire bench of judges, rather than a small panel.
The case stems from a photograph that Sedlik took in 1989 of singer Miles Davis, a black-and-white image 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, one of Von D’s lawyers' arguments that using the image was fair use, along with differences in the lighting and background.
The case was initiated in 2021, but earlier this year, a court of appeals sided with the lower courts in agreeing that the tattoo did not infringe on the photograph.
However, the previous cases sided with the tattoo artist using a copyright test known as the “intrinsic test.” The intrinsic test, which has been used for nearly fifty years by the Ninth Circuit court, asks if an ordinary person would consider the two works in question to have the same “total concept and feel.”
While the 9th Circuit Court of Appeals did not side with the photographer in a January 2026 decision, two of the three judges on the panel questioned the intrinsic test precedent, and one judge suggested that the court should reconsider using the intrinsic test.
The intrinsic test has been previously criticized for relying on an “average observer” opinion on the look and feel of a work. The subjective nature of the rule can lead to juries ruling that cases with a strong extrinsic test similarities – an objective test that looks at whether or not the works are substantially similar – have a substantially different feel and, as a result, are not a violation of copyright.
While the court ordering an en banc hearing does not mean that the “intrinsic test” will be thrown out, it does mean that the Ninth Circuit court thought the case was controversial enough to be considered by an 11-judge panel instead of three.
As the American Society of Media Photographers notes, out of the 625 cases submitted for a potential en banc hearing, only nine court cases were heard by the full panel in 2024. An en banc hearing isn’t a common occurrence, so the ruling could be one for photographers – and all artists – to watch.
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