The Ninth Circuit Court of Appeals is reconsidering the criteria used to evaluate copyright infringement in a case featuring tattoos. This reconsideration involves evaluating the “intrinsic” test presently used to determine substantial similarity, which was a key factor in a legal battle involving a photograph of jazz legend Miles Davis and a tattoo created by renowned artist Kat Von D. Counsel for the photographer, who previously lost at trial, appealed to an en banc panel, aiming to shift away from this subjective standard
The “intrinsic” test is part of a two-part method adopted by the Ninth Circuit to judge substantial similarity in copyright cases. The first part, the “extrinsic” test, is objective, focusing on specific copyright elements and expert testimony. The second part, the “intrinsic” test, is subjective and relies on the “ordinary reasonable person” standard, examining if the feelings and aesthetic impressions of an ordinary observer equate to substantial similarity between the works. This subjective evaluation has become a focal point of contention in copyright disputes, raising issues due to its reliance on juries’ interpretation rather than expert analysis.
In arguing before the Ninth Circuit, legal representatives for the photographer highlighted the need for a more structured and verifiable approach to determining substantial similarity in copyright law. The outcome of this appeal could potentially refine how copyright is adjudicated, particularly in artistic and creative domains, where personal interpretation plays a significant role. This [case](https://www.law360.com/ip/articles/2531713?utm_source=rss&utm_medium=rss&utm_campaign=section) underscores ongoing debates on balancing artistic expression with intellectual property rights.
Notably, this case contributes to broader discussions on how copyright law should adapt to new artistic media such as tattoos, which occupy a unique cultural and legal space. A decision to modify or abandon the intrinsic test could influence future legal battles across the creative industries, where copyright disputes frequently arise over subjective artistic assessments. As tattoo art gains broader recognition, its intersection with copyright law will likely continue to generate significant legal and cultural discourse.
Observers await the en banc panel’s decision, understanding its implications could reach far beyond the Ninth Circuit, potentially affecting copyright jurisprudence in other jurisdictions. As the legal community anticipates an evolving standard, the outcome here may redefine the balance between subjective artistic appreciation and objectivity in copyright infringement assessments.