In the coming months, the Ninth Circuit en banc will decide Sedlik v. von Drachenberg, a relatively straightforward infringement case that asks whether a tattoo copied from a photograph of Miles Davis was substantially similar in protected expression to the photograph. The jury found that the tattoo was not substantially similar. The admitted copying and the jury’s widely questioned finding of no substantial similarity likely triggered the appellate panel’s two concurrences that all but guaranteed en banc review—in particular, of the second part of the two-part test for substantial similarity that has been applied in the Ninth Circuit for decades.
Multiple amicus briefs and just over an hour of questioning from the en banc judges on September 29, 2026, revealed a wide array of views on the issue but no clear consensus—other than that the Ninth Circuit test is likely to change in some way. Certain themes emerged at the oral argument, and they point to where the Circuit may go.
