Ink-Tellectual Property: Copyright's Broken Test Goes Under The Needle

On June 9, 2026, Ninth Circuit Chief Judge Mary H. Murguia granted a rare full rehearing en banc in Sedlik v. Von Drachenberg¹ (the court grants it in only about one out of every seventy petitions it receives).² The Sedlik case involves a tattoo, a photograph of Miles Davis, and a legal question that should have been easy — nobody disputes that the tattoo was copied from the photograph. The question the Ninth Circuit is now reopening is why that fact wasn't enough to win the case.

The Facts, Fast

In 1989, photographer Jeffrey Sedlik captured a now-iconic portrait of jazz legend Miles Davis — dimly lit, finger pressed to his lips in a "Shh!" gesture. Sedlik registered the photograph with the U.S. Copyright Office in 1994.³ In 2017, celebrity tattoo artist Katherine Von Drachenberg — known professionally as Kat Von D — gave a friend a tattoo of the Davis image, working directly from Sedlik's photograph: she projected it on a light box to trace the outline, made a stencil from that