One of the most high-profile lawsuits in recent years has erupted in the world of tattoo art and copyright. On June 9, 2026, Judge Mary H. Murguia, presiding over the U.S. Ninth Circuit Court of Appeals, issued an unprecedented decision: the copyright infringement case of photographer Jeffrey B. Sedlik against renowned tattoo artist Kat Von D (real name Katherine von Drachenberg) will be reheard by the full court. This event, known as an en banc review, is extremely rare and signals the importance of the precedent for the entire creative industry.
The Core of the Conflict: Photography vs. Tattoo
At the heart of the dispute is an iconic black-and-white portrait of jazz legend Miles Davis taken by Jeffrey Sedlik. In the photo, the musician holds his finger to his lips in a “shush” gesture. Kat Von D, one of the most influential figures in the tattoo world, recreated this image on a client’s skin. The dispute arose because the tattoo is an almost exact replica of the photograph, rendered in a different medium.
Initially, a jury, and then a three-judge panel of the Ninth Circuit, ruled that the tattoo was not “substantially similar” to the original. This decision shocked the professional community. The American Society of Media Photographers (ASMP) and many legal experts believe that the judges effectively ignored an obvious infringement, relying on a complex legal construct known as the “intrinsic/extrinsic test.”
Why the Rehearing Decision is a Sensation
A decision for a full rehearing of a case is not routine but an exceptional measure. The Ninth Circuit Court hears hundreds of cases but grants en banc review in only a few instances. For comparison, in 2024, out of 625 petitions for rehearing, only 29 cases were selected by the judges, and only 9 of them were approved for a full hearing.
Such a status is granted to cases that:
- Show a clear conflict with decisions from other circuit courts.
- Have a high probability of being reviewed by the U.S. Supreme Court.
- Affect the interests of a broad range of individuals (in this case, all photographers and artists).
The Sedlik v. Von D case falls into all these categories. The court acknowledged that the issue is unsettled and requires the attention of all 11 judges of the appellate panel, not just the three-judge panel that previously issued the controversial decision.
The Problem of the “Intrinsic/Extrinsic Test”
The key issue that led to this chaos lies in the methodology of infringement assessment. The Ninth Circuit uses a unique test that divides the analysis into extrinsic (external) and intrinsic (internal) elements. Judges Warlow and Johnston, in their dissenting opinions, directly pointed out the flaw in this approach. They noted that this test distorts copyright law, as the U.S. Supreme Court has never asserted that the “spontaneous impression of an ordinary observer” should be the decisive factor without expert evaluation.
The photographers’ claim is simple: if courts continue to rely on this test, they will allow artists to copy the works of others under the guise of “creative freedom,” ignoring obvious plagiarism. In this case, as evidenced by the court documents, Kat Von D used Sedlik’s photograph directly during the tattooing session, which is confirmed by screenshots from the court documents.
Why This Matters to All Creators
Jeffrey Sedlik, a professional photographer for over 40 years, had never sued for infringement before, despite his works being published and used without permission thousands of times. This case is a matter of principle. As the photographer himself states: “You can’t make a living from your creations if anyone can just take them, copy them in the same or another medium, and use them for their own commercial gain.”
If the court upholds the infringement, it will send a powerful signal to the entire industry. Photographers, illustrators, and designers will receive robust protection for their intellectual property rights. If the court upholds the previous decision, it will open the floodgates for mass copying of others’ works in the form of tattoos, which will cause colossal damage to the creative economy.
What Happens Next
The case is now in the hands of the full Ninth Circuit Court. The judges are expected to reconsider the application of the “intrinsic/extrinsic test” and decide whether to overturn or modify it. The fate of this specific dispute between Sedlik and Von D, as well as the future of copyright law in the U.S., depends on this decision. For the tattoo community, this is also an important lesson: using others’ works without permission is not just “homage,” but a serious legal violation that federal courts are monitoring.
Time will tell whether the court can restore common sense to copyright assessment and protect those who create original content from the unlawful appropriation of their ideas.