Sedlik v. Von Drachenberg: Ninth Circuit Vacates Panel and Reopens Copyright’s “Total Concept and Feel” Test (2026)

In Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir. June 9, 2026), the Ninth Circuit granted rehearing en banc and vacated its January 2, 2026, panel opinion, subjecting the circuit’s decades-old framework for proving copyright infringement to the most searching review it has received in half a century. For photographers, creators, and every rights holder litigating copying within the circuit that governs the entertainment industry, the standard of proof itself is now in play.

The Sedlik facts are straightforward. Tattoo artist Katherine Von Drachenberg, known professionally as Kat Von D, used Jeffrey Sedlik’s 1989 portrait of Miles Davis as a reference for a client’s tattoo. Actual copying was never in dispute; the contested question was unlawful appropriation. Following trial, the jury found that six works — the tattoo, a preparatory sketch, and four social media posts — were not substantially similar to Sedlik’s photograph. As to four additional “process images” that Von Drachenberg stipulated were substantially similar because they reproduced the photograph directly, the jury found fair use. The result was a defense verdict resting on two independent grounds, with the substantial-similarity finding turning on the absence of a shared “total concept and feel.”

That concept marks the doctrinal fault line. Under Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977), the circuit divides substantial similarity into an objective extrinsic test and a subjective intrinsic test — the latter asking whether an ordinary reasonable observer would find that two works share the same “total concept and feel,” a formulation traced back to Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970). The panel did not reach the merits of that framework. Rather, it affirmed on procedural grounds, holding that the denial of Sedlik’s summary judgment motion was not reviewable after a full trial because it did not present a purely legal question independent of disputed facts, and declining under existing precedent to disturb the jury’s verdict. The doctrinal challenge came instead from two concurrences — by Judges Wardlaw and Johnstone — which took the rare step of urging the court to abandon the intrinsic test altogether, functioning as a roadmap for en banc review.

The full court has now accepted that invitation. Sitting for the most direct challenge to the circuit’s extrinsic/intrinsic framework in fifty years — and its most significant en banc examination of substantial similarity since Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) — the eleven-judge en banc court will decide whether the intrinsic test survives. Argument is set for the week of September 28, 2026, in San Francisco.