Intrinsic Test Called into Question as Ninth Circuit Affirms Jury Verdict for Kat Von D

In a precedential decision, the Ninth Circuit affirmed a jury verdict finding that celebrity tattoo artist Katherine Von Drachenberg, famously known as Kat Von D, did not infringe photographer Jeffrey Sedlik’s copyright in his iconic photograph of Miles Davis.¹ While the panel opinion applied settled Ninth Circuit precedent, the decision is notable for concurring opinions by Judges Kim McLane Wardlaw and Anthony D. Johnstone that openly question whether the intrinsic test, the cornerstone of Ninth Circuit copyright doctrine, should continue to play such a dispositive role in the substantial similarity analysis.²

For nearly half a century, the Ninth Circuit has evaluated copyright infringement claims using the two-part extrinsic/intrinsic test.³ Under this framework, a plaintiff must establish both objective and subjective similarity between the works at issue.⁴

The extrinsic test focuses on objective similarities in protectable expression and may be resolved as a matter of law.⁵ The intrinsic test, by contrast, asks whether an ordinary reasonable observer would find the works substantially similar in their “total concept and feel.”⁶ This is reserved for the trier of fact and is not susceptible to expert testimony or judicial dissection.⁷ Both prongs must be satisfied for a finding of substantial similarity.⁸

The facts of the case were largely undisputed. Von D directly copied Sedlik’s photograph by meticulously tracing it and reproducing the image as a photorealistic tattoo on a client.⁹ Von D posted images of the tattoo on social media, with Sedlik’s original photograph visible in the background.¹⁰ Despite this direct copying, the case proceeded to trial, where the jury concluded that the tattoo and the photograph did not share a substantially similar “total concept and feel.”¹¹ As a result, the jury found that the intrinsic test was not satisfied.¹²

On appeal, the Ninth Circuit emphasized that the intrinsic test is the jury’s domain and declined to overrule the verdict.¹³

Although the opinion followed established precedent, Judge Wardlaw’s concurrence sharply criticized the intrinsic test and suggested that the Ninth Circuit should reconsider, or even abandon, its continued use as a outcome-determinative filter in substantial similarity analysis.¹⁴

Judge Wardlaw emphasized that the case presented complex and unresolved questions of copyright law that were never meaningfully addressed because the intrinsic test operated as a procedural barrier.¹⁵ Absent the jury’s intrinsic finding, the court would have been required to engage directly with the extrinsic analysis, including questions about the scope of protectable expression and the proper filtration of unprotectable elements.¹⁶

One main critique is that the intrinsic test can be outcome-determinative regardless of what the extrinsic analysis might reveal.¹⁷ Once the finder of fact concludes that there is no intrinsic similarity, the infringement claim fails outright.¹⁸ This dynamic allows difficult legal questions such as the boundaries of copyright protection or near-verbatim copying to be bypassed in favor of a jury’s subjective impression.¹⁹

The concurrences also note that the intrinsic test has never been adopted by the Supreme Court and has increasingly taken on a life of its own in the Ninth Circuit.²⁰ Judge Wardlaw highlighted the tension between the intrinsic test and Section 102(b) of the Copyright Act, which draws a clear line between protectable expression and unprotectable ideas or concepts.²¹ While copyright law protects specific pictorial expression, the intrinsic test expressly instructs juries to assess the “total concept and feel” of the works which risks undermining the distinction in the statute.²²

Another practical concern is that the intrinsic test’s subjectivity makes early resolution difficult for plaintiffs.²³ Because the intrinsic inquiry is reserved for the trier of fact and turns on the perceptions of a “lay observer,” courts are reluctant to grant summary judgment in favor of plaintiffs, even where strong similarities exist.²⁴ In practice, this can place plaintiffs at a significant disadvantage and force costly trials in cases that might otherwise be resolvable as a matter of law.²⁵

Judge Johnstone stressed that the intrinsic test invites inconsistency by prioritizing intuition over set legal standards.²⁶ Different juries can examine the same works and reach opposite conclusions, leading to inconsistency in copyright cases.²⁷ As a result, infringement outcomes in the Ninth Circuit may depend less on governing law and more on the sensibilities of a jury.²⁸

While the Ninth Circuit’s decision leaves the extrinsic/intrinsic framework intact for now, the concurrences reflect growing discomfort with the intrinsic test’s influence in copyright decisions.²⁹ Whether these critiques ultimately lead to doctrinal change remains to be seen, but the decision highlights an ongoing tension between subjective jury determinations and the need for predictable copyright analysis.³⁰