Full Court Rehearing Granted in Copyright Dispute Over Kat Von D's Miles Davis Tattoo

A significant legal development has unfolded in the Ninth Circuit Court of Appeals regarding a copyright dispute. Chief Judge Mary H. Murguia has authorized an en banc rehearing, where the full court will reconsider the case of Jeffery B. Sedlik v. Katherine von Drachenberg, also known as Kat Von D. This uncommon procedural move suggests the judiciary recognizes the profound implications of this particular lawsuit.

At the heart of the litigation is the question of whether a tattoo created by Kat Von D, depicting Miles Davis, constitutes an infringement on a photograph of the jazz legend taken by Sedlik. Previous rulings by a district court and a three-judge panel of the Ninth Circuit concluded that the tattoo was not "substantially similar" to the photograph, a decision that has drawn considerable criticism from within the photography and copyright communities. Many argue that this finding disregarded established legal precedents and common understanding of copyright principles.

The decision to grant an en banc rehearing is a rare occurrence, highlighting the perceived unsettled nature of the legal questions involved. Such reviews are typically reserved for cases that reveal a divergence in legal interpretation among circuit courts, have the potential to reach the U.S. Supreme Court, or significantly impact a broad spectrum of individuals. This case meets these criteria, making its progression closely watched by creators across various artistic disciplines.

This case holds immense importance for all creative professionals, especially photographers, as it directly addresses the safeguarding of intellectual property rights. Without robust copyright protections, the ability of artists to sustain themselves through their work and the overall landscape of creative output could be severely diminished. The existing "intrinsic/extrinsic test" used by the Ninth Circuit, which has been critiqued by even some of the appellate judges, is seen by many as flawed, potentially allowing clear instances of copying to go unaddressed.

The outcome of this full court rehearing could redefine the boundaries of copyright law, particularly concerning transformative use and substantial similarity. If the Ninth Circuit abandons its current, controversial test in favor of a more universally accepted standard, it would significantly bolster the rights of creators and encourage a more equitable environment for artistic innovation. This pivotal moment offers an opportunity to align judicial interpretations with the realities faced by contemporary artists, ensuring that their efforts are properly protected and valued within the legal framework.