Law360 Quotes Dori Hanswirth on Ninth Circuit Copyright Test After Kat Von D Verdict

Dori Hanswirth, Intellectual Property partner and co-lead of the firm’s Technology & Media industry group, was quoted in the Law360 article, “Is 9th Circ.'s Copyright Test Doomed After Kat Von D Verdict?” which examined whether the U.S. Court of Appeals for the Ninth Circuit may revisit its long-standing intrinsic test for assessing substantial similarity in copyright cases following a jury verdict in favor of tattoo artist Kat Von D in Sedlik v. Von Drachenberg, et al. 

Dori said the appellate panel seemed to question the role of the intrinsic test.

“I think what they're doing is trying to get the full Ninth Circuit to review this en banc so that they could all consider whether to do away with this intrinsic test because it's not really found anywhere else,” she said. “It’s never been approved by the Supreme Court, and it's not quite the same test in other circuits.”

She pointed to the Second Circuit as an example of a more concrete framework that filters out unprotectable elements before comparing works. Dori also observed that the intrinsic test gave limited weight to the photographer’s creative choices in the Miles Davis image at issue, despite the photograph’s recognizability and expressive elements.

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