Ink, Icons & Involuntary Servitude: the Kat Von D Tattoo Case

Can a person “own” the art on someone else’s skin? That was the high-stakes question at the heart of the recent Ninth Circuit Court of Appeals decision in Sedlik v. von Drachenberg.¹ In a case that pitted the rights of a world-renowned photographer against a celebrity tattoo artist, the court’s ruling provides a vital update on how copyright law navigates the “living canvas,” and gets around the bodily autonomy conundrum.

The Case

The dispute originated when professional photographer Jeffrey Sedlik sued celebrity tattoo artist Katherine von Drachenberg (professionally known as “Kat Von D”). Sedlik alleged that Kat Von D infringed his copyright by tattooing a realistic reproduction of his iconic 1989 portrait of jazz legend Miles Davis making a “Sssh” pose onto a client’s arm and sharing images of the tattooing process onto her social media accounts.

The original Sedlik Photograph of Miles Davis in the “sssh” pose (left); the reproduced tattoo by Kat Von D (right). Source: Sedlik v. Von Drachenberg, slip op. at 10.

On January 2, 2026, the Ninth Circuit affirmed a jury’s verdict in favor of Kat Von D. First, while the jury found the social media posts re-publishing the work during the tattooing process was fair use, the court reluctantly agreed, but noted that a procedural error made by the jury on the fair use finding should have been dismissed by the district court.²

Substantively, the court held that because the jury found the tattoo was not substantially similar to the photograph under what is known as the Ninth Circuit’s subjective “intrinsic test,” and that that test is reserved exclusively for the finder of fact (i.e., jury), it did not find error in the district court’s upholding of jury verdict of no substantial similarity involved disputed facts rather than purely questions of law.

What is the intrinsic test? It is the second prong in the analysis of determining substantial similarity used by Ninth Circuit.³ A successful copyright claim must show 1) ownership of a valid copyright registration, and 2) defendant’s copying of protected elements of that work’s expression.⁴ The second element requires “copying” and “unlawful appropriation.” Sedlik only concerns the second component of “unlawful appropriation.” Unlawful appropriation requires a showing that the infringing work is substantially similar to the infringed work. The Ninth Circuit’s analysis of substantial similarity is a two-pronged test, the extrinsic/intrinsic test. The extrinsic test analyzes the objective aspects of the works, assisted by expert witness testimony or other extrinsic evidence. The intrinsic test is reserved for the finder of fact, and tests similarity of expressive elements from the point of view of the ordinary reasonable observer, without expert assistance.⁵ Both tests must be satisfied in order for a finding of substantial similarity, and therefore, a finding of copyright infringement.

The intrinsic test finding in the district court proceeding drew sharp criticism from the two concurring opinions. Both Circuit Judge Kim McLane Wardlaw and Circuit Judge Anthony Johnstone (joining each other’s concurrences) concluded that the intrinsic test has fundamental flaws and should be reconsidered or abandoned entirely.

Judge Wardlaw noted the fundamental contradiction where the intrinsic test instructs juries to consider the “total concept and feel” of works, yet the Copyright Act explicitly states that copyright protection does not extend to any “idea” or “concept.” She asserted that allowing juries to decide infringement based on subjective impressions of “concept and feel,” without filtering out unprotected elements, contradicts the Supreme Court’s jurisprudence which emphasized carefully distinguishing protected original expression from unprotected ideas and facts.⁶

Tellingly, both judges noted that had their panel been able to properly review the case de novo, it would have found that Kat Von D’s tattoo as a matter of law infringed the Sedlik copyright. Judge Johnstone emphasized that the tattoo “shares all its major creative elements” from Sedlik’s photograph, including Davis’s distinctive finger pose (arranged by Sedlik), facial expression (encouraged by Sedlik), hair styling (directed by Sedlik), shadows and highlights (lit by Sedlik), and viewing angle (chosen by Sedlik). The minor Kat Von D differences introduced – slight variations in shading, texture, and detail necessitated by the challenges in replicating a photograph on human skin – would not under proper copyright analysis defeat a finding of substantial similarity.

The Slavery Argument: Bodily Autonomy vs. Intellectual Property

The big issue of human ownership over another – in other words, slavery – was passingly discussed by the Sedlik panel. Only Judge Wardlaw mentioned that in cases involving tattoos on human bodies presented an “additional wrinkle” beyond typical copyright disputes. However, this question is a major one.

If a copyright holder were granted absolute control over an image on someone else’s body, it could lead to legally absurd and ethically troubling scenarios. In the amici curiae briefs filed in Sedlik, critics have argued that granting a copyright holder such power over a human body equates to a form of involuntary servitude which violates the 13th Amendment.

These issues are unsettling, and, for now, are not settled law. However, while decided on technical grounds, Sedlik is a landmark for intellectual property issues involving tattoo art. Yet, there are deeper questions about ownership, autonomy, and the limits of intellectual property protection over human bodies remain unresolved.

Are you an artist or a creator concerned about how your work is being used? Would you like to have a cease-and-desist template prepared or a licensing agreement specifically tailored for tattoo business? For more information, please contact Yonaxis I.P. Law Group.

---

Footnotes

1. ___F.4th___, Case No. 24-3367 (9th Cir. January 2, 2026). ↩

2. “The jury mistakenly determined that eight posts that were found to be not substantially similar were a fair use. When a jury gives ‘superfluous answers in violation of a trial court’s express instructions contained on the special verdict form,’ those answers ‘do not constitute legitimate or viable findings of fact’ and ‘[t]he trial court must therefore dismiss them as surplusage, as a matter of law.’ Floyd v. Laws, 929 F.2d 1390, 1397 (9th Cir. 1991) (Sedlik, slip op. at 11). ↩

3. It should be noted the other major copyright-heavy circuit court of appeals, the Second Circuit, employs the ordinary observer test for substantial similarity. ↩

4. Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116-17 (9th Cir. 2018). ↩

5. See Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir. 2008). ↩

6. See Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 363-64 (1991). ↩