Judges Doubtful About Kat von D Tattoo Copyright Win

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1:28Adio. Start your free trial at adio.com slash iHeart. This is Bloomberg Law with June Grosso from Bloomberg Radio. You can't erase a tattoo, but can you erase a jury verdict about a tattoo? That's what photographer Jeffrey Sedlick is asking the Ninth Circuit Court of Appeals to do. The photographer sued celebrity tattoo artist Kat Von D over a tattoo she inked of legendary jazz musician Miles Davis based on Sedlick's copyrighted photograph of Davis. The jury took only three hours of deliberating before it returned a verdict for Kat Von D, finding that the tattoo wasn't substantially similar to the photo and didn't violate the copyright laws.

2:16But on appeal to the Ninth Circuit, the judges seem to be struggling to understand how the jury could reach that verdict when the tattoo and photo look alike. Here are judges Kim McLean-Wardlaw and Anthony D. Johnstone. We look at it, we say this is the same photograph. Yet through all these machinations, it ended up being the jury saying, oh, but it's not substantially similar. and I think it kind of defies rationality to suggest that it's not the same photograph. It is the same photograph. It's on a different medium. So how did the jury get where it got? But I think we've also said that just transferring it onto a different medium can't alone be a difference, right?

3:08We're looking at similarities rather than differences. So if you have everything else is the same and we're just going to change it from being on photo paper to someone's skin. How's that? But even if the judges thought the jury was wrong, what could they do about it? The Ninth Circuit has never reversed a jury verdict on substantial similarity, a subjective test. Joining me to answer these questions that the judges struggle with is intellectual property litigator Terrence Ross, a partner at Kattenmuchen Rosenman. Terry, will you explain the test used here for copyright infringement? So in order to prove up a case of copyright infringement, you have to show ownership of a registered copyright and proof of infringement.

3:51The test for infringement in the Ninth Circuit, where this case takes place, is well-developed over many years, a little bit complicated, but very well-developed. And it's a two-part test with respect to substantial similarity. First, there is what's known as the extrinsic test, which is really an objective test, a fancy word for saying objective test. And that's undertaken by the court, by the judge, who determines whether or not there are objective elements that have been copied that constitute the literary works expression, in this case, the photographic works expression. So is there reason to believe that a protected element of the work was copied?

4:37Now, this is easier to do, in my opinion, in cases of photographs than in movies, television shows, plays, books, where small portions are copied and they slightly change the characters or the setting or the plot. And there, judges are really presented with a challenging first step in this infringement process that they have to undertake to determine whether or not protected elements of copyright were infringed, and they get help from experts on that. The second step, assuming that the copyright owner passes the first test, which is sort of a gatekeeping function that the judge performs, the judge then allows the infringement charge through the gate, so to speak, to the jury.

5:18And then the jury looks at the two works, engages what's known as an intrinsic test, which is essentially a subjective review. And the expression you often hear used in the case law is, does the look and feel of the copied work constitute an infringement, i.e. an improper copying of the original work? So there's this two-part test, part one done by the court, part two done by the jury. So the judge in this case allowed the infringement charge through the gate, and the jury decided on the intrinsic subjective test that the tattoo wasn't substantially similar to the photo. But during the Ninth Circuit arguments, Judge Wardlaw said they were struggling to figure out why the jury didn't find that they were substantially similar.

6:07She said it defied rationality and it is the same photo, it's just in a different medium. And it seemed like the other judges agreed with her. Can they say the jury was wrong and reverse the verdict? Not really. There are some rare instances where that's happened in copyright cases, but not in the context of substantial similarity. I know of at least two cases out there in the Ninth Circuit that involved the defense of de minimis use, where you take such a small portion of copyright at work that the law allows you to do it. And I know there have been a couple of cases where the appellate court reversed a jury finding on that.

6:43I've never seen it done in the context of substantial similarity case here. And a lot of this battle was lost by the plaintiff when the district court judge, the trial judge, ruled that this was not a case of substantial similarity. At summary judgment, the copyright owner, the photographer, had moved for summary judgment saying, look, this is no different than putting a book on a Xerox machine. It's literal copyright infringement, and we don't need a trial. And the judge discreet said it was not literal copying and said that they would have to proceed to trial. on a theory of substantial similarity.

7:21And in many respects, that cost them the advantage that they had, the copyright owner, because then you're putting it up for grabs with a jury. You just don't know how juries come out, particularly where you have a celebrity defendant here, Kat Van D, who's apparently a famous tattoo artist in California, and potentially, you know, more interesting trial counts in the courtroom presenting the case. And by all accounts, The defendant's trial attorney did a just fabulous job in the courtroom of getting the jury to understand the process that the tattoo artist went through and how that constituted original art in a way.

8:04So to a certain extent, got outlawyered in the courtroom. Some of the judges asked the photographer's lawyer to cite grounds that would allow them to overturn the jury verdict. And Judge Anthony Johnston saying it appeared to be beyond our review. I mean, is there any way if they feel that it's obvious that this is not substantially similar and that the jury maybe was taken by the celebrity factor? I mean, is there any way that they would reverse the jury verdict? So let me start off by saying this. The counsel for the photographer who argued before the Ninth Circuit is a well-known, well-respected copyright lawyer by the name of William Patry.

8:47He has written one of the leading treatises on copyright law that was the copyright lawyer for the House of Representatives during several periods of time in which really significant revisions were made for the Copyright Act and then taught copyright law for a number of years. Very well respected, knows copyright law. As you say, this question was put to him before he had completed his first sentence at oral argument before the Ninth Circuit. Can we do this? Can you cite us to authority that allows us to do this? And the only cases he was able to cite to were not in the context of substantial similarity cases.

9:24They were in other contexts. And certainly from listening to the argument on tape, I came away convinced, as apparently you do, that the judges would not have reached the same verdict as the jury, but were going to respect the jury's verdict and affirm it. And this is the whole problem with losing on the second part of the test, the intrinsic subjective test that depends on the subjective view the jury has to the look and feel of the two works. You cannot substitute as an appellate judge your opinion for that of the jury's. And so I don't see any way that this is going to be overturned. I love this line from Photographer's Council.

10:10We don't know what the jury did, and we don't know what the mystery of Stonehenge is either, but we do know the jury should never have done this. It must be frustrating to have judges see that a jury made a mistake and still can't do anything about it. As a baseball guy, the only analogy I can give you is umpires calling balls and strikes at home plate. I mean, it's absolutely verboten for a manager or a player to challenge the cause of balls and strikes. In some sort of objective sense, measured by a robot, the ball may have been slightly outside the plate. But that does not make it a ball. The call of the umpire makes it a strike, and for all purposes it is a strike.

10:53And to go around saying, oh, got that call wrong, no, there's no appeal from that. And it's the same with a jury verdict. For the most part, absent fraud, jury being bribed or something like that, The jury verdict stands up because you're not allowed to replace your view, your personal view as a judge, with that of the 12 men and women of the jury. It simply isn't done in Anglo-American law. And that's the problem you hear expressed at the oral argument from these judges. They would have decided it differently, but they realize that they're handcuffed. Terry, Judge Johnstone seemed to have some broader concerns.

11:31I guess my concern is we're kind of washing out the value of and the principle of copyright by allowing a jury to reach unreviewable subjective determinations on an intrinsic test. So he's complaining about the test that has been established in the Ninth Circuit, and not just in the Ninth Circuit, in multiple other circuit courts. You know, the Sixth Circuit, where you have Nashville and Detroit, you get a lot of copyright cases. Second Circuit, where you have New York, you get a lot of copyright cases. Seventh Circuit, Chicago, you get a lot of copyright cases. All these courts have adopted this test, although it was pioneered by the Ninth Circuit.

12:08And that was 35, 40 years ago, and it's lasted the test of time. In the majority of cases, it works. In this one case, you might be able to argue the jury got it wrong. I actually, unlike you, see some differences in the photograph and the tattoo. Now, whether or not they're enough to have me vote non-infringement, I don't know. I haven't thought about it enough. But the complaint that the judge here has is fundamentally a complaint about existing law. And in order to change existing law, somebody is going to have to petition for an en banc review at the Ninth Circuit. So what should happen here is the panel of three judges affirms the jury's verdict, and then the photographer, the plaintiff, files a petition for review en banc, meaning the entire Ninth Circuit, all the active judges of the Ninth Circuit, sit and reconsider whether this is the appropriate test.

13:04And that perhaps is what is being suggested here. But it is sort of like whistling in the wind. And there are always going to be jury verdicts that people think the jury got wrong. And that's going to be in civil cases and that's going to be in criminal cases. It's fundamental to our jurisprudence that we accept that margin of error in order to allow the sort of due process we want to have, i.e. to have regular citizens decide the cases. And I think it's very misplaced for an appellate judge on a prominent court of appeals like this to, in effect, badmouth the jury. We've talked about copyright and tattoos before.

13:42Does this stand for any broader principle about tattoos of copyrighted works? I don't believe it does. I don't believe it stands for any broad principle in copyright law generally. Both attorneys, the attorney for the photographer, attorney for the tattoo artist, when asked this question at the Ninth Circuit oral argument, said that they did not believe the decision here impacted more broadly than the dispute between the two parties. And I agree with that 100%. This is a relatively run-of-the-mill copyright case. It doesn't set any new copyright law. It doesn't set any new precedent. And that's why I'm not super concerned about the fact that maybe the jury got it wrong.

14:24Jury verdicts don't set precedent. And so the law will continue to be the same. And the next jury might have a completely different view of a tattoo. But in all cases like this, I come back to this fundamental proposition. The courtroom is not a neutral playing ground. It is shaped by the attorneys on either side. And there are attorneys who are really good trial lawyers, who are really good in a courtroom, and who can shape the case and the jury's verdict of the case in a manner that benefits their client. And there are lots and lots of attorneys who don't fit that bill. And that's more often than not the real explanation for why a particular case comes out one way or the other for people who simply hire lawyers without considering, well, if this case goes to trial, How good is my guy, my girl, going to be in the courtroom doing mano a mano battle?

15:29And they simply don't consider things like that. And that's a mistake. And you get what you deserve when you make that kind of mistake, and you don't hire a really good trial lawyer. And, you know, I wasn't there for the trial, but based on what observers did say and everything I've heard about the case, It seems to me that the combination of a celebrity defendant and the defendant outlawyering the plaintiff may have led to what at least these judges on the Ninth Circuit felt was a wrong decision by the jury. Thanks so much, Terry, for those insights from an experienced trial lawyer. That's Terrence Ross of Cat and Mewch and Rosenman.

16:08And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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