Litigation partners Catherine Nyarady and Crystal Parker’s latest intellectual property litigation column, “Ninth Circuit Tattoo Copyright Decision Signals Appetite for A New Test for Substantial Similarity,” appeared in the January 21 issue of the New York Law Journal. The authors discuss Sedlik v. Von Drachenberg, in which the U.S. Court of Appeals for the Ninth Circuit affirmed a jury verdict finding that a hyperrealistic tattoo of Miles Davis was not copyright infringement, while also acknowledging criticism of the longstanding “total concept and feel” test for substantial similarity in copyright law. The panel found that the district court properly applied the law; however, they noted that “the intrinsic test possesses fundamental flaws” and recommended the court “discontinue the use of the test entirely.” In its place, Judge Kim Wardlaw recommended a different test focused on the “filtration of protectable and unprotectable elements,” which she believes would have produced a different verdict. The judges’ criticisms highlight ongoing debate across federal circuits regarding the appropriate test for substantial similarity in copyright infringement cases. Litigation associates Scott Caravello and Alex Lee assisted in the preparation of this column.
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