In interviews with Bloomberg Law and Law360, Knobbe Martens’ Copyright Litigation Co-Chair Mark Lezama weighed in on the potential impact of the Ninth Circuit’s ruling in a high-profile copyright case involving celebrity tattoo artist Kat Von D.
In a decision issued on January 2, the court upheld a jury verdict that found Von D did not infringe photographer Jeffrey Sedlik’s photograph of musician Miles Davis. Notably, two circuit judges on the appellate panel issued concurrences calling for the overturning of precedent requiring juries to apply the Ninth Circuit’s unique ‘intrinsic test’ in copyright cases.
Speaking with Bloomberg Law, Lezama addressed how the court could solve for some of the issues posed by the intrinsic test, which asks jurors to determine whether the “total concept and feel” of two works are similar. While noting that there are potential alternatives to the test, Lezama underscored the test’s original aim: “By dissecting a work into only its protectable elements, you lose sight of the bigger picture and the expressive, protectable selection and arrangement of otherwise perhaps individually unprotectable elements.”
Summarizing the origin of the test in Law360, Lezama stated that it arose out of concern that jurors might “lose the forest for the trees” if they were only able to focus on constituent, discrete elements in a work.
Read Lezama’s full comments in Bloomberg Law and Law360 [subscriptions may be required].
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