Ninth Circuit Accepts En Banc Review in Sedlik Copyright Case

Glaser Weil is pleased to announce a significant development in its representation of renowned photographer Jeffrey Sedlik in his high-profile copyright dispute involving the unauthorized use of a copyrighted photograph as the basis for a tattoo.

Today, the U.S. Court of Appeals for the Ninth Circuit accepted Sedlik’s petition for rehearing en banc—marking the first time in seven years that the court has agreed to rehear a copyright case en banc. This extraordinary step underscores the importance of the issues presented and the potential for meaningful impact on copyright law across the circuit and beyond.

Background of the Case

Jeffrey Sedlik is the creator of the iconic 1989 photographic portrait of jazz legend Miles Davis that is central to this litigation. Defendant Kat Von Drachenberg, a celebrity tattoo artist, used Sedlik’s photograph as reference material and as a stencil for a photorealistic tattoo without obtaining a license or permission. She later shared images of the tattoo process on social media, including posts depicting Sedlik’s original photograph.

Following a jury trial in January 2024 in the Central District of California, the jury returned a verdict of no infringement. The court subsequently denied post-trial motions, and Sedlik appealed.

In July 2025, the appeal was argued before the Ninth Circuit and on January 2, 2026, a three-judge panel affirmed the judgment. Notably, however, two members of the panel issued concurring opinions sharply criticizing the Ninth Circuit’s long-standing “intrinsic test” for substantial similarity—a central doctrine in copyright law.

A Case with Far-Reaching Implications

On February 17, 2026, Glaser Weil filed a petition for rehearing en banc, urging the court to revisit and abandon the intrinsic test in favor of a more objective, element-based framework. The petition highlighted concerns that the intrinsic test is subjective, inconsistently applied and incompatible with modern copyright analysis.

The panel’s concurring judges echoed these concerns, pointing to jury confusion, tension with Supreme Court precedent, and the test’s tendency to shield verdicts from meaningful appellate review. They emphasized that the current framework can disadvantage copyright holders—particularly in cases involving works translated across different artistic media.

The Ninth Circuit’s decision to grant rehearing en banc signals that a majority of active judges believe these issues warrant full court consideration. Such grants are exceedingly rare, particularly in copyright cases, and reflect the case’s exceptional significance.

Looking Ahead

The en banc proceedings present a unique opportunity for the Ninth Circuit to reexamine a decades-old doctrine that has shaped copyright litigation in the region. A revised approach to substantial similarity could bring the circuit into closer alignment with other jurisdictions and significantly affect how copyright claims are evaluated at both summary judgment and trial.

Beyond the doctrinal implications, this case also presents a matter of first impression regarding the rights of visual artists when copyrighted works are reproduced in tattoo form—an issue with growing relevance in today’s creative economy.

Glaser Weil partner Robert Allen and associate Jason Linger represent Jeffrey Sedlik, along with co-counsel William Patry and Moon Hee Lee of Quinn Emanuel.

Read Law360’s “9th Circ. Grants Rare Rehearing In Kat Von D Tattoo Fight” for more on this development.