Intrinsically Confusing? A Timeline of Sedlik v. Drachenberg, the Miles Davis Tattoo Case Making Its Way Up the Judicial Ladder

Edited: the following article was edited on February 11, 2026 to correct the ‘Works at Issue’ and better clarify those Disputed Works by the Defendants. 

Are tattoo artists committing copyright infringement when they use copyrighted photographs or content as references to fulfill their clients’ body art dreams? This is the question at the heart of Sedlik v. Drachenberg, a closely watched copyright infringement case that has traveled from the District Courts of California up to the Ninth Circuit Court of Appeals. In light of the Ninth Circuit heralding in 2026 with the latest decision, we’re providing a timeline of how this case came to be.

Is it infringement or inspiration? The legal clash over tattoo artists using copyrighted photographs as reference art.

The Basics

PLAINTIFF: Jeffrey Sedlik, photographer, Professor at the Art Center College of Design, President of Sedlik Productions and President & CEO of PLUS Coalition.

DEFENDANT(S): Katherine von Drachenberg (a.k.a. Kat Von D), tattoo artist and owner of High Voltage Tattoo parlor; High Voltage Tattoo, Inc., a California corporation; and Kat Von D, Inc., a California corporation.

Works at Issue

THE ORIGINAL WORK: Sedlik’s photograph of the iconic jazz musician, Miles Davis, from 1989 which was published in Jazziz Magazine in the same year. Copyright registration for this photograph was issued on July 6, 1994.

Disputed Work(s)

The Tattoo – a tattoo of Miles Davis by Kat Von D on the arm of Blake Farmer, a lighting technician who befriended Kat Von D admires Miles Davis as a hobbyist musician. Farmer sent Sedlik’s photograph to Kat Von D as a reference for what he wanted. The jury deemed the Tattoo as NOT substantially similar.

The Line Drawing(a.k.a. “The Sketch”) – as part of the tattooing process, Kat Von D created a line drawing of Miles Davis using Sedlik’s photograph and a light box to trace outlines and contours. This was then converted into a stencil via a thermal fax machine to place onto Farmer’s arm before Kat Von D freehanded the rest of the tattoo. The jury deemed the Line Drawing NOT substantially similar.

The Social Media Posts – there were various social media posts that documented the tattooing process: We’ve listed them below in accordance with the jury verdict form: 

The following were deemed NOT substantially similar by the jury: 

1. “Messy Progress” Social Media Posts 

2. Final Tattoo Social Media Posts  

3. An Instagram Story  

4. A post of Kat Von D working at the Light Box 

The following were deemed Fair Use by the jury:

1. Post of Kat Von D working on the Tattoo on Kat Von D’s Social Media 

2. Post of Kat Von D working on the Tattoo on High Voltage’s Social Media 

3. Post of the Final Tattoo on Kat Von D’s Social Media 

4. Post of the Final Tattoo on High Voltage’s Social Media 

Case Summary

In 2021, Sedlik brought claims of copyright infringement by Kat Von D based on her Miles Davis tattoo and the subsequent social media posts showing the same. Sedlik also claimed under the DMCA that copyright management information on the photograph was removed and therefore, a violation of the DMCA. A year later, the District Court would grant Kat Von D's motion for summary judgment regarding the DMCA claims because Sedlik failed to meet his burden for proving the requisite mental state. Additionally, none of the Disputed Works contained copyright management information. This narrowed the remaining dispute to: did Kat Von D commit copyright infringement by using Sedlik’s photograph as a reference for Farmer’s tattoo of Miles Davis?

To prove copyright infringement, there must be valid copyright ownership in the original work and then copying of that work’s protectable elements. Not all copying is illegal, however. Illegal copying requires a certain amount of copying of only those protectable elements such that it becomes unlawful appropriation. This is also known as substantial similarity between the original work and the disputed work(s).

Since the 1970s, judicially created tests have assisted courts in determining whether substantial similarity between two works exists. The first being the intrinsic test which stands in the footsteps of an ordinary reasonable observer, i.e. a juror, to determine “the total concept and feel.” The second test is the extrinsic test which separates those protectable elements from unprotectable elements in a somewhat more objective manner.

In January of 2024, a jury found the social media posts to be a fair use of Sedlik’s photograph, in spite of the fact that Kat Von D stipulated that they were substantially similar since the photos contained Sedlik’s Photograph in the background. The jury also found that the Tattoo and the Sketch were not substantially similar to Sedlik’s photograph.

Most recently, the Ninth Circuit affirmed the District Court’s prior decisions on the parties’ motions for summary judgment and upheld the jury’s verdict but not without making clear that some of the circuit judges disapprove of the intrinsic test.

We Need to Talk About the Concurrence

It’s important to note that the jury in this case ultimately found that, under the intrinsic test, there was no substantial similarity between Sedlik’s photograph and the Disputed Works. Meaning that the jury did not then move onto analyzing the works under the extrinsic test. In a nutshell, the jury’s opinion on “the total concept and feel” under the intrinsic test trumped an objective analysis of what protectable elements of Sedlik’s photograph were copied.

This of course did not sit well with Sedlik, hence his appeal to the Ninth Circuit. But evidently, it doesn’t sit well with some of the Circuit Judges either – although they’re not alone. The intrinsic test has garnered much dissatisfaction since its creation in the 1970s. “[A] jury’s job is to find facts, not feelings. Because a jury’s subjective impression of a work’s ‘total concept and feel’ is all but unreviewable, we have never reversed a jury’s no-infringement verdict under the intrinsic test,” writes Circuit Judge Anthony Johnstone in his concurrence with the opinion.

So Kat Von D and High Voltage can continue to use copyrighted content as reference photos - for now. But there are still some options available to Sedlik after his unfavorable appeals opinion. He can attempt to request a rehearing by the appeals court or petition the U.S. Supreme Court. Time will tell if he pursues either option to take the intrinsic test to task. Disclaimer

This post is intended for informational and educational purposes only and summarizes publicly available court proceedings and judicial decisions. It does not constitute legal advice, does not create an attorney-client relationship, and should not be relied upon as a substitute for legal counsel. Any discussion of the parties’ arguments or the court’s rulings is provided solely as commentary on matters of public record. Readers should consult a qualified attorney regarding any specific legal questions or circumstances.