Judicial Hot Take: Sedlik v. Kat Von D - Is the 9th Circuit’s Two-Part Infringement Analysis Fatally Flawed

Dealmakers Barry Neil Shrum, Esq. and Dennis Glenn Disney Esq. discuss the 9th Circuit's recent opinion in the Sedlik v. Kat Von D case involving Jeffery Sedlik's famous "Shh" photograph of Miles Davis, which Kat Von D tatooed on the arm of her friend.  In the 9th's opinion, there were two concurring opinions which bemoaned the application of the "intrinsic" component of the 9th Circuit's two party analysis, arguing that the objective standard should be abolished.  

Transcript

SPEAKER_00 0:05

Welcome to Music Row Deal Makers, where we explore our world of making deals from Nashville's famed Music Remo. In the heart of Music City, we are the deal makers, from composing to closing. Now, here's your hosts, Barry Neal Schrum and Dennis Disney.

SPEAKER_02 0:30

Good morning to all of our faithful deal makers out there. Good morning, Dennis. Hope you're doing well. Good morning. We appreciate uh all of our listeners. I'm Barry Shum, founding partner of Shrum Disney and Associates. And uh along with me here is Dennis Disney. And together we are the deal makers of music role deal makers from composing to closing. We hope you are enjoying this podcast. We've now exceeded 1,500 faithful listeners. Dennis, that's quite an achievement there. Better than 1499. It certainly is. It's just a little bit better. For those of you listening, don't forget you can you can ask us questions and we'd like to have more of that coming in. If you do have questions, dial 877-7 Dealmakers. That's 877-7 DealMakers, or you can send an email inquiry to questions at musicrow dealmakers.com, and that's where you can find all of our wonderful episodes.

SPEAKER_01 1:25

So you know, let me interrupt. You you just brought up an idea. What's that? About asking questions. What we need to do sometime is delve into key questions that I always think about is what's the best deal you've ever done? What's the worst deal you've ever done? What were your biggest mistakes, biggest accomplishments, you know, those types of things with some of the stuff, you know? Yeah. Obviously, some things may have to remain confidential. We we can go ahead and ask ourselves the questions, I guess. Yeah, no, exactly. Exactly. Just sort of sharing some of that.

SPEAKER_02 1:57

You know, we may have to change uh some of the names to protect the guilty, but uh, you know, that's well, it it's it's hard to change our name since we're we're the featured uh audience. But uh anyway, in this episode, uh listeners, we we have promised and have been doing a couple of episodes on exploring not only the legislation, but we also want to look at a couple of key cases that have happened in uh well 2025 was this case, but or it was this one. This was 2026. So recent case decisions that that that affect the music industry and copyright and intellectual property directly. And and we'll be looking at the Ninth Circuit's opinion in an appeal involving the photographer Jeffrey Sedlick. You probably don't know his name, but if you are a jazz musician fan or a fan of trumpet jazz, then you'll know Miles Davis. And you'll probably know the famous shh photograph where Davis's finger is up to his lips and he's in a dark sort of sultry uh pose. And that was Jeffrey Sedlick. Now, you will know the the defendant in this case, Kate von D, is what she goes by on social media, Catherine von Drakenberg. Uh this case, unfortunately, was decided primarily on procedural grounds. But it's it's what what's more important is is how the the court rationed that and and particularly the concurring opinions by uh a couple of justices named, I think it was Warlaw and and John Stone or something of that nature. We'll get to that. But it raises serious questions about the viability of the Ninth Circuit's infamous two-part test for substantial similarity. And that was articulated in the first in the 1977 case involving none other than McDonald's Mayor McCheese. You remember Mayor McCheese, Dennis? I ate a bunch of McChees's at one time in my life, yeah. So, yeah, very familiar with his product. Thank you, McDonald's, for another crappy pro No, I'm just kidding. So, Dennis, I want to set the stage a little bit here about what that is, what the two-part uh analysis is and where it comes from. And honestly, Judge Johnstone, in in in in the concurring opinion, articulated it quite well. He says uh in part one, the Ninth Circuit looks at what what they call the extrinsic test, and they ask whether there is a substantial similarity in ideas. And in that test, that is what we generally refer to, I think, as the intrinsic uh analysis, or I'm sorry, the extrinsic analysis. And then part two is what they call the intrinsic analysis, and they ask whether there is a substantial similarity in the expression itself. Now, the test was designed in theory to emulate what copyright lawyers refer to as the idea expression dichotomy. That's found in 17 USC section 102. The first part, of course, articulates the expression, and we protect original ideas that are expressed in a tangible medium of expression. Section 102B, however, says in no case does federal law extend to general concepts or ideas or things of that nature. And in his concurring opinion, going back to the Ninth Circuit, one of the things that makes it so important is word law says that that that intrinsic part of the two-part test essentially, quote, distorts copyright law, end quote. And that's something we'll dig into a little bit more later, Dennis. I think one of the one of the things you see in a court like the Ninth Circuit is the variety of these decisions. How one decision, for example, in Hanagami, and we'll talk about that case a little bit, they just they overruled the lower court's uh motion to dismiss, which is similar to a motion to summary judgment. And in my mind, those cases are pragmatically essential. And so how you get one that overrules it and one that doesn't illustrates the problem with this test. So, but but but but to truly understand that, we've got to go back, I think, to a 1930 case involving a play and a and a movie, a production. And it's known as Nichols versus Universal. And none other than Justice Learned Hand articulated the abstraction test in that case and the inherent problem with the abstraction test. But Dennis, I before we before I articulate the abstraction analysis from hand, what about that name? Justice Learned Hand, right? There are just some justices who apparently were born to be a judge. Do you think that's one of them?

SPEAKER_01 7:18

Yes. You know, first name in particular, learned.

SPEAKER_02 7:22

And uh maybe not so much hand.

SPEAKER_01 7:25

Maybe not so much hand, you know. Different contexts that would be appropriate.

SPEAKER_02 7:30

But anyway, one of my favorite judges' names is Justice Oliver Wendell Holmes Jr.

SPEAKER_01 7:36

So, you know, back in the day, I think, I think maybe even to even in modern times, aristocratic families search for those names for that very purpose. They did. Yeah, we're going to give you a regal sounding name that will sort of force you down a line of where we think you ought to go.

SPEAKER_02 7:55

And there is a phrase, and I I don't remember what it is off the top of my head, but but that says what what your parents name you somewhat predicts your uh is predictive of your your your goal, your your plot in life. Very true. So I don't know.

SPEAKER_01 8:11

Sorry, I was getting ready to throw out a couple of words. I don't know. I don't know what Disney says about you where you're going, no, but I'm thinking of I'm thinking of other D names that uh we shouldn't go through. Yeah, my father named me, well, it it shows. That's what you grew up to be.

SPEAKER_02 8:26

Well, and and I tell you what, you've lived up to it with your your pension for uh dad jokes and we we do have a comedic time around here.

SPEAKER_01 8:36

Most people don't realize my father was a Walt. Yeah. Not the well, he was the Walt to me, but not the Mickey Mouse Walt.

SPEAKER_02 8:43

Not to everybody else.

SPEAKER_01 8:44

He worked worked for a bridge contractor, and he was doing a federal, he was a superintendent, and he was running a federal highway job in in Charleston, West Virginia back in the 70s, and the reporter found out what my dad's name was. And so he came out to do a story on the project, but he brought a pair of Mickey Mouse ears. My dad, uh we I've got it framed at my house, the article, put the Mickey Mouse ears on his head, and the headline said federal highway job, no Mickey Mouse operation. I love it. I love it.

SPEAKER_02 9:13

So anyway, Justice Learned Hand talks about this case, and and I I want to give a little bit of background about this case, if I can pull it up here. Give me a second. There we go. Nichols versus Universal Pictures. And in this case, it involved a playwright who wrote a book. It was entitled Abbey's Irish Rose, 1922 play. It's about a young Jewish person who married an Irish Catholic. And of course, this is against the wishes of their families. You know, a typical Roma, Romeo and Juliet, the story has been told many times. And their fathers didn't want them to get married. And of course, the hilarity ensued in this in this particular play. And then the defendant comes along, Universal Pictures, and produces a film called The Coens and the Kellys in 1926. And that is based on an Irish boy who marries a Jewish girl from feuding families. And of course, a hilarity ensues in that film as well. And of course, the plaintiff suit saying, Oh my gosh, you you you just basically switched it around and you know, so uh Justice Lorna looked at this and said, okay, well, what you're dealing with here, and this is sort of where the concept of Dennis Sin's affair comes along. Sin's affair is the idea that if you're writing about a certain theme or a certain location or or things of that nature. For example, if you're writing about Nashville, you're gonna have certain scenes that are demanded by the location. You're gonna talk about maybe Music Row and and the fact that a lot of songwriters come here, and or maybe you'll talk about the Parthenon and the bat building and things of that nature. The scene demands in a in a literary context certain things. And and he was saying the same thing applies here. You know, when you're talking about basically a Romeo and Juliet theme, you're not talking about something that is an original expression. It's something that you have to work into the thing. And and in this regard, this is where Hand elucidates the uh what I call the abstraction test. He says, upon any work, a great number of patterns of increasing generality will fit equally well as more and more of the incident is left out. And he says there is a point in this series of extractions where they are no longer protected. Now, what he's talking about there is you you take the overall work, but you have to subtract the fact that you've got a Jewish boy. You've got to subtract the fact that you've got an Irish girl, or vice versa. You've got to abstract the fact that there's feuding families. This is all part of the sins affair. This is all part of the analysis. But the important part of Hann's opinion is where he basically admits that it's really impossible when you start down that road of abstraction to fix a boundary. He says nobody can ever fix that boundary, and nobody ever can. We we can't know at what point to stop. And so what he's hinting at there is this is a very difficult analysis when we start talking about uh things like plays. And we see this in music, Dennis. Uh you've you've you and I could sit here and write a country song, right?

SPEAKER_01 12:49

Or not, but yes.

SPEAKER_02 12:51

But we we would start with a very simple idea, right? Maybe a pickup truck and a dog. You gotta have a dog. Yeah. And what you know, what else we got there? Maybe a girl in Daisy Janes? Yes, exactly. Yeah. Driving down a dirt road. Oh, wait, Jason Aldean wrote that.

SPEAKER_01 13:10

Of course, it does remind me of the old joke what happens when you play a country song backwards? You get your wife back, your dog back, your truck back, your house back.

SPEAKER_02 13:21

That's exactly right. But but anyway, you get the point. I think the audience gets the point. I mean, and and in pop music or country music, which is a form of pop, we all know, not only are the themes very simple, but also the melodies tend to be based on simple chords, usually G C D, but you know, no more than three or four chords. You might throw in an E minor to make things a little moody, but you know, it's very simple structure. So this is important. This concept of abstraction is important when we talk about music because the layers of protection get extremely thin. And I mentioned the case Hanagami earlier involving a choreographer who sued Epic Games for using one of his dance moves that was copyrighted. And when you talk about dance, you know, what are you talking about that's protectable? So this Sedlit case, the Ninth Circuit case, explores some of these complexities of trying to pick out what is the total look and feel of a of a copyright. Dennis, tell us a little bit about you know what the claims were here, what happened. It involved obviously a tattoo.

SPEAKER_01 14:45

But uh tell us a little bit about the Yeah, so Kat Von D, and I think what exacerbated some of it is that she is on video or on at least a still image. I think it was YouTube where she is tattooing Miles Davis, that image you just mentioned, on someone's shoulder, but she's got the photo right there next to her to watch, to look at.

SPEAKER_02 15:11

Exactly.

SPEAKER_01 15:11

So you see the photo there or a copy of the photo that she had printed out, and she is literally, excuse me, literally copying every element of that tattoo onto this gentleman's shoulder. And in candidly, it was really impressive what she did, yes.

SPEAKER_02 15:27

Well, and and I think there was testimony in the trial, the the lower you know, court of first impression, district court, that it's difficult. There were you know, specialists came in, tattoos specialists, I didn't know that those existed, but that they the expert came in and said that's not easy to do. And and there was no denial by Von D that she copied the photograph. She was intending to copy the photograph. And that's the for me, Dennis, that's the disturbing thing about this case, right? If if you can't get a a summary judgment on that, then what can you get a summary judgment on?

SPEAKER_01 16:08

Yeah, what ended up I think helping her argument in this is that basically the they made this argument that her the distinctive expressive elements in the tattoo she was able to modify through her freehand drawing, if you will, of on on or the freehand tattooing, the the freehand shading and those sorts of things that she those sort of choices she had to make. Granted, trying to mimic the photo that she had there that she was copying. But because of that, according to some of the analysis that I've ended up looking into, apparently the the jury really bought into that idea, that idea that, hey, this isn't a direct copy because she's making expressive decisions all along the way. My argument would be, well, yeah, her expressive decision was I'm going to copy that exactly. Is that but is that an expressive decision or not?

SPEAKER_02 17:08

Well, and and this gets to the idea and part of the abstraction idea that that judge this learned hand was trying to illustrate. And that is that you can't take an original expression like the Miles Davis photograph, make slight tweaks to it. And albeit maybe those tweaks are original, right? Maybe her tattooing it and she had to make certain choices, okay. Even if we say that's original. If you make tweaks to an original expression while you're copying it, does that give you a copyright?

SPEAKER_01 17:47

I see I'm with you on that. I I read through this case, read through some of the various analyses that were done on it. And I st still keep coming back to my opinion, she infringed. She just flat out copied what was there.

SPEAKER_02 18:05

But and I agree with you. And and it this this one just sticks in my crawl, as they say. I I I cannot reconcile it with a you know, my years of experience trying copyright cases. What is copyright? It's actual copying. You gotta have that. Well, you have that here. You have the defendant admitting that. Well, not only admitting it, she's got the evidence in the video. Exactly. She put it up on on social media. I mean, how much more evidence do you need, Ninth Circuit? And then you need a valid copyright. There's no doubt that Sedlik had a valid copyright. The most important element, of course, is substantial similarity. The the elements that are protectable have to be substantially similar. And that's where I think both the district court, the lower court, and the ninth circuit failed to do the proper analysis because there is no doubt that there were original expressions in Sedlik's photograph. He posed the hand so that it looked like musical notes. Now, honestly, I didn't know that aft until I read this case. But there was testimony from him that that's why he put the fingers the way he did, because he thought it looked like some sort of note. And he also based this on the idea of his interviews with Miles Davis, where Miles Davis said his preferred venue was a small, quiet, smoky bar where it's just him and the audience and the darkness. And that photograph is based on that idea. And damn it, if Sedlick didn't do a good job, you know, not only is this a great photograph, not only is this an original copyright, but he he brought in the whole mood and everything else. He he has an uh and and it's the most iconic image of Miles Davis. When I think of Miles Davis, I think of this picture.

SPEAKER_01 20:21

Yeah, I I'm with you on that. And and I know that as the arguments went on within the case, you know, they they this idea of what's what she was doing, fair use, what does that mean? The other elements to you have to prove, you have to, you know, some sort of commercial, for lack of a better word, material impact, you know, on the work. Some of those things which apparently the court said said it really couldn't establish.

SPEAKER_02 20:51

And yeah, well, uh I you know, there's a certain degree of well, we've got to look at our system. And I think there was a breakdown in the system here. I read an article involving this case when it was at the district court level, where they interviewed some of the jurors, uh jurors. And one of the jurors literally said, We decided this way because he's got a right to put whatever he wants on his arm. It's like, okay, what does that have to do with copyright infringement, right? And in my mind, it's up to the judges to instruct the juries so that they don't make such ridiculous statements.

SPEAKER_01 21:36

No, I I'm with you. I know that the court refused to overturn a jury decision in this case. You know, how they found that there was no substantial similarity.

SPEAKER_02 21:49

Well, let's back up there a minute. They talk a lot about that, but what they essentially did is said that the judge below did not commit error in Denying the summary judgment motion. That's the procedural part I was talking about earlier. They didn't really say there's no substantial similarity here. They said they said the jury could reasonably determine that there was not. And that's why the grant.

SPEAKER_01 22:19

Because that what they did though, they they put it back as a fact element. And the jury was the trier of fact at the lower court.

SPEAKER_02 22:26

They did, but why not remand it? Right? Rather than affirming the denial of the summary judgment, they should have remanded it for more evidence or more, I don't know, something.

SPEAKER_01 22:38

I don't disagree with that. However, they don't typically correct me if I'm wrong on this, but they won't typically remand based on factual. No, they won't.

SPEAKER_02 22:50

You're exactly right.

SPEAKER_01 22:51

So because it was a fact finding, that's probably why. But the lower court judge, and I'm assuming plaintiff side raised this, they could have raised a you know judgment notwithstanding, you know, at the end of the case and say, hey, you know, they got a completely wrong judge.

SPEAKER_02 23:08

Yeah.

SPEAKER_01 23:09

And and in my opinion And then appealed that. And and the judge exactly. And the judge should have came in and said, Yeah, they did. They got a completely wrong on the law. And so therefore, finding for plaintiff, and then let the fence appeal that.

SPEAKER_02 23:25

Well, the the concurring opinions, and and for the life of me, I can't understand why they concurred. Because their opinions, their concurring opinions, clearly think they are making the wrong decision. So why didn't you not concur? That would be my question. But but basically they said this is the problem with our inherent with our intrinsic test. It's based on an objective observer, that being the jury. Right. And when you put the something that is so controversial that Justice Learn at Ham, when he first articulated it, said, nobody can do this. And so what do we do? We say, okay, jury, you do it. You fix the boundary. No.

SPEAKER_01 24:13

Yeah.

SPEAKER_02 24:13

Right. And and that's what these two uh concurring opinions basically point out. We should ditch this intrinsic objective kind of standard and ply our own judgment, basically, eliminate the intri the two the first part of the two-part test, or or the second part, and do away with it. That's what they say.

SPEAKER_01 24:34

So let's look down the road. Yeah. What impact will this ruling, do you think, I have an opinion, will have on future copyright infringement cases?

SPEAKER_02 24:44

Aaron Powell Ooh, I don't know. And you know, the Ninth Circuit is it has always sort of tried to be out there, right? Tried to be ahead of the curve in terms of intellectual property. So it's going to have an impact. And one of the impacts is it's going to make it extremely more difficult for a plaintiff to win a copyright infringement action because the defendant has all the benefit on his side now. And one of the concurring opinions points that out that this intrinsic test heavily favors the defendant.

SPEAKER_01 25:23

So how how many plaintiffs going forward in you know somewhat similar type cases, I guess, are going to ask for a bench trial versus a jury trial? Well, I know I will. I will too. Yeah. Absolutely. I'm not gonna matters like this, I'm not gonna put it in the hands of a jury.

SPEAKER_02 25:39

No, no, not at all. I mean, not when you hear statements like the ones we we talked about earlier. I just think he he should be. If he wants Mickey Mouse on his arm, he could be put it on there. Not a bit.

SPEAKER_01 25:49

I mean, juries will end up having way too broad of discretion on nuanced areas. And I just don't think that would serve copyright and and the rights holders very well. I I agree.

SPEAKER_02 26:05

And we we talk about putting it in the hands of the judge, but then on the other hand, there are cases where the judge may not have the capacity to be able to fix that line. And what I'm thinking about is the Hanagami case. Have you are you familiar with the Hanagami case? Just by name. I haven't delved into it. Just to kind of give you and the listeners a sort of a brief summary of the case, uh, Kyle Hanagami is a choreographer. He got his fame through the K-pop generation over in Korea choreographing music videos. And he's got a fairly distinctive style. But you and I would look at it and say, okay, that just looks like they're moving their arms in the same direction or whatever. But he's got a style. And there's this trend among choreographers. And of course, choreography is one of the things listed in Section 102 as things that can be protected, like pantomime. And that's another one, right, that has these thin layers of protection. And when I teach copyright law, I teach my students that country music and and songwriting is very much this way. Because what you're essentially doing is layering unprotectable elements to create a protectable copyright and an expressive whole. And that's part of the problem with the intrinsic test, is it when it begins to when we begin to abstract it and we begin to take out the elements that aren't protected. All right, think about this. Think about it in the context of a musical composition. If we start to take out the chords, oh, wait a minute, everything's based on the chords. If we start to bring take out the words, well, no, you can't do that. You you've got to incorporate non-protectable elements in the overall whole. And this is this this is all too common when we look at a case like Hanagami. In Hanami, Epic Games came along and took an iconic dance move from Kyle that that was on YouTube. And they replicated that in the form of this little dancing thing you can buy in Fortnite. Apparently, you buy these little characters and they perform certain dances for you. And that was one of the ones that your character could could get that if you got the extra points and things. And so the value of this was not that great, maybe 10 bucks or something to get the dance. But he sued Epic Games. And in that case, the judge goes as far as to say, okay, well, we need to break it down. We need to look at the various dance moves. So how do we do that? Well, we'll break it out in pictures. Well, wait a minute. A picture cannot illustrate a dance, right? And he did that. And he said, look, all these are just common moves. Nothing, nothing special here, nothing to see here, folks. Go home. Anagami, you lose. Now, Dennis, the way I talk about this in in in my copyright class is it's kind of gross, but I was only five years old. So you hopefully the listeners will forgive me for this story. But uh when I was young, my it was Christmas time, and you know, in in Lafayette, Tennessee, population 3,000. The only store we had was the Dollar General store. So my mother and I would go there shopping, and I one day I saw, you know, near Christmas, I saw this big science set, you know, with all the little beakers and colored liquids and all that thing, and a big metal case. And I said, Mom, I want that for Christmas. She said, Okay, honey. And so Christmas Day, you know, I look under the tree, and sure enough, there's a big metal box under there. And I said, Oh, great, I got my science set. Well, no, mom had bought me the dissecting set. And so I had a dead frog in there and a scapel. I was a little disappointed. But anyway, I, you know, I cut the frog open. You look at the gray, you know, formaldehyde laden frog, and you know, it's like, oh, that's kind of dull. I'll go out and catch a frog, right? And cut it open. This is the gross part, right? And so I was astute enough that I didn't want to cut the live frog open, so I had to figure out a way to anesthesize it. And I dumped it in a Vata gasoline. Of course. Why not? What else are you going to do? I didn't have any gas other than gasoline. So anyway, it worked. He uh ostensibly died, and so I began to cut him open. When I cut him open, his little heart was beating. It's like, ah that's kind of cool though. Yeah. Yeah, it was cool. Cruel, but cool. So anyway, I didn't have any way to I didn't know how to suture. So I didn't have any way to put the frog back together. And that's what happens with a copyright when we begin to take it apart. Oh, wow. That's a long way to go for a metaphor, isn't it?

SPEAKER_01 31:17

Long metaphor right there, man. Maybe incredibly appropriate, but holy cow.

SPEAKER_02 31:25

So that's the problem with the abstraction test. And it's it's illustrated in Hanagami and a lot of other cases, I might say, in the Ninth Circuit and other circuits, where they try to apply this kind of idea. Well, we got to take out the sin's affair. All based on just Justice Learned Hand's abstraction analysis, but just as learned hand recognized this ain't gonna work in most cases.

SPEAKER_01 31:52

So look, let's go back very briefly and walk through again intrinsic test versus extrinsic test as it relates to copyright. Okay. And because one of the aspects, maybe the aspect, primary aspect of uh the intrinsic test, is whether an ordinary observer would find the work substantially similar in their quote, total concept and feel, end quote. Right. And that's really what you're talking about with the dance. With the dance, you can't break it up into those individual little arm movements and angles and all it's the total concept and feel. Yes. Yes. So again, walk me through that and walk our listeners back through that intrinsic versus extrinsic and how it related to Kat Von D in this particular ruling.

SPEAKER_02 32:40

Well, the the flip side of that is is the objectivity, right? And let's go back to the the two-step analysis just to kind of put it in the context, if I can get back there. The intrinsic part is the second part of the analysis. Then there's the extrinsic part. And that's where it's breaking out every little element. Right. Basically, right. That's what that's what Justice Larn and Hammond would have called the abstraction. Right. And so, and I think that's where it gets flawed, because that should be a fairly objective analysis, right? And that's the part of the two part that I really think fails more than the intrinsic part. But the intrinsic part comes in after we've done that and says, okay, of these elements that are not just mere ideas, of these elements that are not just sin's affair or whatever, right? A concept, what elements are substantially similar? And there's the disconnect, right? And when we get to the intrinsic portion, which was your question, the the jury then steps in and says, okay, well, from an objective standpoint, from our subjective standpoint, there's no substantial similarity between anything that's protectable. Let's take it in music, okay? If we hear a melody, the melody is the most protectable element of a song. And as you know, in copyright infringement and cases involving pop music, it's usually no more than six to twelve, maybe sixteen notes that are at issue. Very frequently, there is no issue regarding them the lyrics or things of that nature. And so when we're talking about just the melody, what would happen is we we take out all the words, we take out all the other notes in the case, and we focus on those 16. That's the part that we would maintain has been misappropriated. That's the protectable expression. And so then the jury comes in and the intrinsic set and theoretically looks at the overall copyright, the total look and feel, and says, okay, based on our ordinarily reasonable person objective uh subjectivity, we don't see any similarity. There's a disconnect there.

SPEAKER_01 35:20

I think there's a huge disconnect, and especially whether Kat Vundi printed off a photo, whether she sketched her sample that she was tattooing from by hand. When I look, especially from an intrinsic perspective, the total concept and feel, how it's there, do you not see how do you not see that? Not only is not it's not even substantial similarity, it's almost exactly. I mean, it's beyond substantial.

SPEAKER_02 35:50

Let's face it, she did an amazing job. Yeah. It's almost identical. Yes. I don't see any other new expressive content. And that's uh to me, that's the that that's the problem with the concurring opinions. It's like you guys see this, you guys get this. There is a disconnect. We should do away with this the uh the subjectivity, but yet you concurred in the opinion. Why? Right? I look I I go back too to to the George Harrison case, which you're probably familiar with, where basically the the the melody was almost identical. But George Harrison didn't intend to infringe, right? But the judge says it's subconscious infringement. He had heard the song. It stuck in his head, the melody stuck in his head, obviously. I don't think he intended to copyright, but he said they're actually the same, they're identical. So, so therefore, you know, actual copying, substantial same uh we got copyright infringement.

SPEAKER_01 37:01

It's strict liability, folks, right? I'm just laughing because we have hor Harrison court saying unintentional, but he infringed. Over here with Kat Von D, absolutely intentional, yeah, but no infringement. Yeah. It's just it it they don't it does not jive.

SPEAKER_02 37:20

And that's the problem with applying these, and that's my frog analogy, right? Once we start tearing it apart, it's it's hard to see the total it can feel. So we actually confuse, I think, juries and some judges when we do that. And and that's what happened in Hanagami. The judge confused himself. He said, Oh, look at all these photographs. I don't see that. Well, obviously, this judge has never been to a modern dance. He doesn't understand what modern dance is. It's not a series of photographs until you put the emotion and the artist into the equation. And that's that's the part that I think the intrinsic test leaves out, yeah, is what the artist is imparting. Uh, you've heard me quote um the something irreducible from Justice Holmes. And you know, he basically says every human has something unique about them, and you can see that in their handwriting. You know, nobody's handwriting looks the same as somebody else's handwriting. Of course, kids these days don't handwrite, they they use print, but uh that's a different story. And he says there's something irreducible in art that is reflective of that personality, of that person. And that is no more apparent than when you talk about dance, when you talk about pantomime, and in this case, when you talk about photography, right? There is a portion, there is something irreducible in Sedlik's photograph that is his and his alone. That's what Oliver Wendell Holmes would say. And I think he would turn over in his grave if he saw, you know, read this opinion, because it just ignores that and makes this bold claim that somehow the fact that she tattooed the photograph almost directly, you know, precisely, there's some originality in that. And that makes it somehow her copyright. That is the very essence of a derivative right, right? A right of adaptation. If you read the definition of derivative in the Copyright Act, it's basically casting it in a different medium. In other words, if you take a photograph and make a sculpture out of it, right? You need a license for that. Why, in this case, did she not need a license to reproduce it on somebody's arm? Makes no sense at all. Except that you throw the actual person in the case. The medium is a person. And that's where that juror's statement that, hey, he's got a right to tattoo anything on his arm.

SPEAKER_01 40:07

That's the conclusion. And even there were some arguments, well, it's a different medium. It's tattooing on a on skin versus none of that shouldn't should be.

SPEAKER_02 40:17

That is the purpose of the derivative rights.

SPEAKER_01 40:19

Yes. Well, I I haven't I've I've tried to look, but I haven't found whether Sedlick is going to try to petition for a writ of sortiari.

SPEAKER_02 40:29

I I I've read that he is, but and I uh you know I I pray that he does. It's still recent enough that I I think it could be the case. I do not know how the Supreme Court would rule on this.

SPEAKER_01 40:44

But uh part of me would hope that they would see enough here in the ruling to say we need to bring in some stronger clarification on copyright law and some of these elements that that got argued. I think this is such a massive miss by the courts from the trial court all the way through the Ninth Circuit that I I it it would just be hard for me to think that they're gonna not take it up should they be petitioned. I guess the question is are they going to try to petition?

SPEAKER_02 41:20

I agree. I agree. Let's hope they do. Audience, if you have questions about this case, please, as we said earlier, call us at 8777 DealMakers or send us an email at questions at musicrow dealmakers.com. Dennis, any parting thoughts?

SPEAKER_01 41:37

No, other than you know, as practice tips, I guess, for uh litigators. Yeah. Honestly, deciding whether to be in front of a jury or in front of a judge is an incredibly important strategic decision. Yeah. I mean, we've got some cases ourselves here where in one case we said we absolutely want to be in front of a jury because our plaintiff will be much more sympathetic. Yeah. And then we've had a couple others who said we absolutely don't want to be in front of a jury. They're not going to understand it on the one hand, or they're not going to be sympathetic to our client in that. And we need a the we need a court to throw all the that stuff out and just focus on the facts and the law, so to speak. So I think that's a big decision.

SPEAKER_02 42:22

It is a big decision. But it's difficult. I mean, like we talked about in in California, you know, where you've got a huge entertainment law presence, right? You would think, okay, being in front of a judge, that's going to be a good thing, right? But then you've got the cases like Hanagami. And the same is true here in in Tennessee. You know, we've got a strong entertainment presence, you know, New York and and and that area. There are certain pockets where you expect judges would be a better forum for an intellectual property issue. Don't disagree. But I'm just saying it's not always easy.

SPEAKER_01 43:02

No, it's not. I mean, candidly, and it it feels a little bit like the the trial judge didn't want to make a decision.

SPEAKER_02 43:10

Yeah.

SPEAKER_01 43:11

He just wanted to kick it to the jury, let them make a decision, and if one side doesn't like it, they'll let it take it up the line.

SPEAKER_02 43:16

Yeah.

SPEAKER_01 43:17

But I think he really mishandled all of this. And then you and I both disagree with the Ninth Circuit. And and I would think most people in the creative field would feel the same way. That he just missed it. I mean, if you are a pro-copyright person, how do you read this other than guys, you gotta you just really set us back?

SPEAKER_02 43:41

Yeah. You you watered down copyright law, at least in the Ninth Circuit, yeah, for a long time. You know, I don't know how the Sixth Circuit would deal with it. I can't predict that, but I would want to think, like you, that there are more astute judges out there that would decide the other way. Agree. All right, well, audience, we'll be back in two weeks. You guys have a great time.

SPEAKER_00 44:12

Music Row Dealmakers is a production of Shroom Disney and Associates. Recorded on location on Music Row, the heart of Music City, Nashville. Subscribe to future episodes wherever you enjoy your podcasts.