Summary
The Ninth Circuit affirmed the district court’s judgment for Katherine Von Drachenberg and High Voltage Tattoo in Jeffrey Sedlik’s copyright infringement action involving a Miles Davis photograph, a tattoo, a sketch, and social media posts. The court held that the denial of summary judgment was not reviewable after trial because it did not present a purely legal issue independent of disputed facts, and that the jury’s finding of no substantial similarity was not subject to disturbance under Rule 50(b). Judges Wardlaw and Johnstone concurred in the judgment and criticized the Ninth Circuit’s intrinsic test for substantial similarity.
Topics
Practice areas
Questions Presented
- Whether the Ninth Circuit could review the district court's denial of Sedlik's motion for summary judgment after a full jury trial.
- Whether the district court erred in denying Sedlik's renewed Rule 50(b) motion because the evidence required a finding that six challenged works were substantially similar to the copyrighted photograph.
- Whether the jury's finding under the intrinsic test for substantial similarity could be disturbed on appeal.
Holdings
- A district court's denial of summary judgment is not reviewable on appeal after a full trial when the ruling rested on disputed factual issues; the narrow exception for a purely legal question independent of disputed facts did not apply here.
- The district court did not err in denying Sedlik's Rule 50(b) motion because he failed to show that the jury's verdict was contrary to the only reasonable conclusion permitted by the evidence under both required components of the Ninth Circuit's substantial-similarity test.
- The intrinsic test assesses similarity of expression from the standpoint of an ordinary reasonable observer and is reserved for the finder of fact; the appellate court will not second-guess the jury's application of that test in this case.
Key quotations
“Generally, the denial of a motion for summary judgment is not reviewable on an appeal from the final judgment after a full trial on the merits” (at 13)
“This exception does not apply here because Sedlik’s arguments “hardly present ‘purely legal’ issues capable of resolution ‘with reference only to undisputed facts.’”” (at 14)
“we must determine “whether the evidence permits only one reasonable conclusion, and that reasonable conclusion is contrary to the jury’s verdict.”” (at 15)
“We therefore affirm the jury’s verdict based on the intrinsic test.” (at 16)
“Our caselaw required the jury to apply a subjective “total concept and feel” test without meaningful guidance.” (at 34)
Factual background
Jeffrey Sedlik created and copyrighted a 1989 photograph of Miles Davis, carefully selecting Davis's pose, expression, hair, clothing, lighting, camera position, and other creative elements. Katherine Von Drachenberg used the photograph as a reference to create a tattoo of Davis, including by tracing the photograph to prepare a stencil, and posted images of the tattooing process and result on social media. The jury found that the tattoo, sketch, and four social-media posts were not substantially similar to the photograph, while four Process Images that reproduced the photograph were fair uses.
Procedural history
Sedlik sued Von Drachenberg and related defendants in the Central District of California for copyright infringement involving a photograph of Miles Davis, a tattoo based on the photograph, and social-media posts. The district court denied Sedlik's motion for summary judgment, the case proceeded to a January 2024 jury trial, and the jury found six challenged works not substantially similar to the photograph and found four Process Images noninfringing as fair use. The district court denied Sedlik's post-trial Rule 50(b) motion, and the Ninth Circuit affirmed.