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The jury did not find that Kat Von D’s Miles Davis tattoo was fair use. It found instead that the tattoo, her sketch and four related posts were not substantially similar to photographer Jeffrey Sedlik’s 1989 portrait. In a separate finding, the jury ruled that four process images—which reproduced Sedlik’s photograph in the background—were fair use after Von D stipulated they were substantially similar. A Ninth Circuit panel later affirmed the judgment, but that opinion was vacated when the court granted rehearing en banc. The case’s next status must be checked against the official docket.
How the dispute began
Jeffrey Sedlik created a portrait of jazz trumpeter Miles Davis in 1989. The photograph depicts Davis making a “Shh!” gesture. According to the Ninth Circuit’s panel opinion, Sedlik arranged Davis’s fingers, adjusted his hair, selected the clothing and jewelry, and directed the subject’s pose and expression.
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In 2017, tattoo artist Katherine Von Drachenberg, known as Kat Von D, used the photograph as a reference for a tattoo she gave to her friend Blake Farmer. She also made a sketch and published images and posts about the work through High Voltage Tattoo and related accounts. Sedlik sued Von Drachenberg and other defendants for copyright infringement. The case reached a jury trial in January 2024.
What the jury actually decided
The verdict involved different works and different legal findings. Treating them as one blanket fair-use ruling misstates the result.
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| Work | Relationship to Sedlik’s photograph | Jury finding |
|---|---|---|
| Tattoo | Based on the photograph as a reference | Not substantially similar |
| Sketch | Drawing associated with the tattoo | Not substantially similar |
| Messy Progress Post | Social-media material about the work | Not substantially similar |
| Final Tattoo Post | Social-media material showing the finished tattoo | Not substantially similar |
| Instagram Story | Social-media material | Not substantially similar |
| Light Box Post | Social-media material | Not substantially similar |
| Four Process Images | Displayed Sedlik’s photograph in the background while the tattoo was being inked | Substantial similarity was stipulated; the jury found fair use |
That distinction is central: the jury rejected substantial similarity for the tattoo itself. It did not decide that the tattoo was fair use. The Associated Press corrected its initial February 15, 2024 report to make this point clear.
What the parties argued about money and purpose
The Associated Press reported that Sedlik’s attorney said licensing the photograph—including for tattoo use—was part of Sedlik’s business. That was the plaintiff’s position, not a jury finding that Von D’s tattoo was commercial.
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Von D testified that she earned no money from the gifted tattoo. The Ninth Circuit opinion also noted that she had not charged for tattoos since 2012 and could not be booked for an appointment. Those facts were relevant to arguments about purpose and market harm, but they did not independently determine infringement or fair use.
The eight-person jury deliberated for a little over two hours, according to the Associated Press. After the verdict, Von D said, “I’m obviously very happy for this to be over.”
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Why “not substantially similar” mattered
Copyright infringement requires more than showing that one work influenced another. The plaintiff must establish copying of protected expression and the legally required degree of similarity. In this case, the jury concluded that the tattoo, sketch and four named posts were not substantially similar to Sedlik’s photograph.
The Ninth Circuit panel described the Ninth Circuit’s intrinsic test as asking about “similarity of expression from the standpoint of the ordinary reasonable observer.” The panel said the jury’s verdict was not contrary to the only reasonable conclusion permitted by the evidence. Because the jury found no intrinsic similarity, the panel did not need to reach the extrinsic test.
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The appellate decision—and why it is not the final word
January 2, 2026 panel opinion
A three-judge Ninth Circuit panel affirmed the district court judgment. It held that the denial of summary judgment was not reviewable in that appeal because it did not present a purely legal issue independent of disputed facts. It also declined to overturn the jury’s substantial-similarity verdict.
Judges Kim McLane Wardlaw and Anthony D. Johnstone wrote concurrences criticizing the intrinsic test’s lack of legal content and suggesting that Ninth Circuit doctrine should be reconsidered. Those separate writings were not the panel’s holding.
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June 9, 2026 en banc rehearing
The later case-status entry in Columbia Law School’s Visual Arts Infringement Database says the Ninth Circuit granted rehearing en banc on June 9, 2026 and vacated the panel opinion. It lists oral argument for September 29, 2026. The available case materials were checked on September 28 and do not report what happened after that scheduled argument. The official court docket should therefore be consulted before relying on any current appellate rule or outcome.
Does this case mean tattoos based on photographs are allowed?
No categorical rule follows from this case. The verdict concerns particular works, evidence and litigation positions. It found no substantial similarity for the tattoo and related posts, while separately finding fair use for four images that actually reproduced the photograph. The vacated panel opinion cannot be treated as current Ninth Circuit precedent while the en banc proceeding remains unresolved.
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A free scan shows the junk files, broken settings and background clutter dragging Windows down - then fixes them in one click.Free scan · Windows 10 & 11Artists and photographers should also distinguish between using a photograph as a reference, reproducing the photograph in a post, and copying protected expressive choices. The legal result can differ for each use, as the split verdict demonstrates.
Quick Recap
Key takeaways
- The 2017 tattoo was inspired by Sedlik’s 1989 Miles Davis photograph.
- The jury found the tattoo, sketch and six named posts not substantially similar to the photograph.
- Von D stipulated that four process images were substantially similar; the jury found those images fair use.
- The jury did not find the tattoo itself to be fair use.
- The Ninth Circuit panel’s January 2026 affirmance was vacated after en banc rehearing was granted in June 2026.
- As of the reviewed September 28, 2026 status, the en banc argument was scheduled for September 29; its result was not available.
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