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 Cat von Dee 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 Cat Vonde, finding that the tattoo wasn't substantially similar
to the photo and didn't violate the copyright laws. But on appeal to the Ninth Circuit, the judges seemed to be struggling to understand how the jury could reach that verdict when the tattoo and photo look alike. Here are judges Kim McClain, 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 out onto a different medium can't alone be a difference, right, We're looking at similarities rather than differently. 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 Catin Yutchen Rosenmann. 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. The 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 their reason to believe
that a protected element of the work was copied. Now, this is easier to do, in my opinion, in cases of photographs, then in movies, television shows, plays books where small portions are copied and they slightly change the characters or the setting or the plot, and their 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 we're 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 that allows the infringement charge through the gate so to speak to the jury, and then the jury looks at the two works engages what's done as an intrinsic test,
which is essentially a subjective review. And the expression you often here used in the case law is does the look and feel of the copy 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 charged 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. She 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 the copyright cases, but not in the context of substantial similarity, I know. But at least two cases out there in the Ninth Circuit that involved the events of day minimous use where he takes what such a small portion of copyright at worked 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. I'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. And 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 jury's going to come out where you have a celebrity defendant here, kat Van d who's apparently famous tattoo artists in California and potentially you know, more interesting trial counts in the courtroom presenting the case, and by all accounts, the defendants trial attorney did a just fabulous job in the courtroom of getting the jury to understand the process that the tattoo artists went through and how that constituted original art
in a way so to Cerner think got out lawyered.
In the courtroom, some of the judges asked the photographer's lawyer to psite 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 fact, I mean, is there any way that they would reverse the jury verdict?
So let me start off by saying this. The council for the photographer who argued before the Ninth Circuit is a well known, well respected copyright lawyer by name of William Patrick. He has written one of the leading treatises on copyright law, 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 case is he was able to cite too. Were not in the context of substantial similarity cases. They were in other contexts. And certainly from listening to the argument on tape, I came away apparently you do that the judges would not have reached the
same verdict as the jury. But we're 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 as to the look and feel of the two works. You cannot substitute as an appellate judge your opinion for that of the juries, and so I don't see any way that this is going to be overturned.
I love this line from Photographer's Council. We 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, you know, 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 call them balls and strikes at home. I mean, it's absolutely verboten for a manager or player to challenge the calls 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. And 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 views. A judge with that of the twelve men and women of the jury. It simply
isn't done in Anglo American law. And that's the problem you here expressed at the oral argument from these judges, they would have decided it differently, but they realized that they're handcuffed.
Terry. Judge Johnstone seemed to have some broader concerns.
I guess my concern is we're kind of washing out the value in the principle of copyright by allowing a jury to reach unreviewable subjective determinations on an intrinsic test.
Well, 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 glock copyright cases. Second Circuit where you have New York, get a lot of copyright case. Seventh Circuit you got get a block copyright cases. All these courts have adopted this test.
Although it was pioneered by the Ninth Circuit, that was thirty five forty 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 do, see some differences in the photograph and the patchoo. Now whether or not they're enough to have me vote non infringement, I don't know 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 on bank 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 plane files a petition for review on bank, meaning the entire Ninth Circuit. All the active judges of the Ninth Circuit sit and reconsider whether this is the appropriate test, And that perhaps is what is
being suggested here. But it is sort of like you know, whistling in the wind. There are always going to be jury verdicts that people think the jury got wrong, and that's gore being 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 II to have regular citizens decide cases, and I think it's very misplaced for a pellet judge on a prominent court of appeals like this in effect bad mouth the jury.
We've talked about copyright and tattoos before. Does this stand for any broader principle about, you know, tattoos of copyrighted works.
I don't believe it does. I don't believe it stands for any broad principle and copyright law generally, both attorneys the attorney for the photographer attorney for the tattoo artist, when asked this question at the Ninth Circuit World Argument, said that they did not believe that decision here impacted more broadly than the dispute between the two parties. And I agree with that. 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 juring leritings don't set precedents, and so the law will continue to be the same man the next jury might have a completely different of a tattoo. But in all cases like this that 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 mono and mono battle. And 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 out lawyering 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 Catain Mutchen Rosenman. And 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 dot Bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm Junie Grosso and you're listening to Bloomberg