Kat Von D, Miles Davis, and the Possible Death of the Intrinsic Test?

When a jury says two works are not substantially similar, is that the end of the story? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the Ninth Circuit’s decision arising from the Kat Von D tattoo of an iconic Miles Davis photograph and why it may signal the beginning of the end for the intrinsic test in copyright law.

In this episode, they cover:

• How the Ninth Circuit’s two-part substantial similarity test works
• Why the jury’s finding was nearly impossible to overturn on appeal
• The concurring opinions calling the intrinsic test legally incoherent
• How other circuits analyze substantial similarity differently
• What a reworked test could look like going forward

Whether you are a creator, lawyer, or rights holder, this case highlights a potential turning point in how courts evaluate copyright infringement.