In a recent World Trademark Review article, Knobbe Martens’ Copyright Litigation Co-Chair Mark Lezama discussed the nuances of the Ninth Circuit Court of Appeals’ two-step ‘extrinsic-intrinsic’ test for copyright infringement.
The article explores the latest developments in the ongoing copyright dispute between celebrity tattoo artist ‘Kat Von D’ and photographer Jeffrey Sedlik. After the Ninth Circuit affirmed a jury verdict against Sedlik, the photographer petitioned for rehearing en banc and for the court to adopt a new test for infringement.
Commenting on the court’s current two-pronged test, Lezama noted how the intrinsic prong can unduly favor plaintiffs or defendants depending on the circumstances. However, he maintained, developing a “single-step objective test” for a jury to apply across the full spectrum of copyrightable works could “prove elusive.”
Read the full article, “Ninth Circuit Urged to Scrap ‘Flawed’ Copyright Infringement Test in Miles Davis Tattoo Case,” here. [Subscription required]
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