The Future of Copyright’s Substantial Similarity Doctrine: Insights from the En Banc Rehearing in Sedlik v. Von Drachenberg
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Wednesday, October 7, 2026
1:30-3:00 p.m. Eastern
10:30 a.m.-12:00 noon Pacific
(Convert Time Zones)
This panel will not be recorded. Please join us live!
Join counsel and amici participating in Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir. 2026) for an analysis of the Ninth Circuit’s en banc rehearing just days after oral argument.
Background
The Ninth Circuit has granted rehearing en banc in a closely watched copyright dispute involving two members of the creative community: an independent photographer who created an iconic portrait of Miles Davis and a tattoo artist who later tattooed an image alleged to infringe that photograph on a client’s arm.
The case centers on the Ninth Circuit’s two-part extrinsic/intrinsic test for substantial similarity. The extrinsic component is objective and may be decided by a judge with the aid of expert testimony. The intrinsic component, however, remains controversial because it asks whether an ordinary observer would regard the works as substantially similar in their “total concept and feel.”
Some judges have questioned whether the framework creates an asymmetry that disadvantages copyright owners. The en banc court’s decision may have significant implications for copyright litigation both within the Ninth Circuit and beyond.
The panel will provide a first-hand report on oral argument, discuss whether and how the substantial similarity standard might change, examine the practical consequences of any change for litigants and creators, and consider how copyright infringement risks should be evaluated.
Speakers
William Patry, co-counsel for plaintiff-appellant Jeff Sedlik and author of Patry on Copyright, will be joined by:
- Professor Bruce Boyden, amicus in support of neither party;
- Professor Jessica Silbey, amicus supporting appellees and affirmance; and
- Eleanor Lackman, Co-Chair of the Intellectual Property Practice Group at Mitchell Silberberg & Knupp LLP.
The discussion will be moderated by Professor Sandra Aistars, Distinguished Counselor in Residence and Professor of Law, IPPI: The IP Policy Institute, The University of Akron School of Law.
Registration
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Releated Readings
Sedlik v. Von Drachenberg, Panel Decisions (January 2, 2026)
Sedlik v. Van Drachenberg, Appellant’s Petition for Rehearing En Banc (February 17, 2026)
Sedlik v. Van Drachenberg, Response for Petition for Rehearing (March 10, 2026)