Sedlik v. Von Drache 2.0: Why This Rare Full Court Rehearing Could Shatter 'Fair Use' for Premium Creatives (And What It Means for Your Tattoo Photography & Design Rights in 2026)

This isn’t a minor legal hiccup. It’s a full-blown crisis meeting. When a court vacates a prior decision and gathers all its judges, it’s a signal that the law itself is on trial. And what’s at stake could rewrite the rulebook for every creative who photographs a person with a tattoo, designs a logo inspired by existing art, or documents their own creative process.

The Short Answer: This rehearing could drastically narrow the definition of copyright infringement and fair use, making it much harder for artists to photograph or incorporate existing art (like tattoos) without being liable for infringement. The court is specifically re-evaluating its controversial test for determining if a work is a copy, which could have massive consequences for creatives everywhere.

First, The Story So Far

Let’s get the facts straight. Photographer Jeffrey Sedlik created an iconic—and copyrighted—portrait of jazz legend Miles Davis in 1989. In 2017, famed tattoo artist Kat Von D (Katherine Von Drachenberg) inked a version of that portrait onto a friend, for free. She documented the process, posting images on social media that included Sedlik’s photo as a reference in the background and showcasing the final tattoo. Sedlik sued for copyright infringement in 2021.

In January 2024, a jury sided with Von D, finding her tattoo was not “substantially similar” to Sedlik’s photograph. A three-judge panel at the Ninth Circuit then upheld that verdict in January 2026, but with a huge catch: two of the three judges wrote concurring opinions blasting the legal test they were forced to use. They basically said the existing “extrinsic-intrinsic” test is a subjective mess that handcuffs judges and lets juries make unreviewable decisions based on a vague “total concept and feel.”

That public criticism from its own judges is what triggered this rare *en banc* rehearing, which has been scheduled for the week of September 28, 2026. The previous panel’s decision has been completely vacated. It’s a do-over. And the stakes are infinitely higher.

Why This Is a Five-Alarm Fire for Creatives

This isn’t just about one photo and one tattoo. The core of this case is about control and value—the very things I’ve built my 15-year career on. The outcome will set a binding precedent on two critical questions.

• When is a copy *not* a copy? The court is being asked to throw out its subjective test for a more objective one that focuses only on protected elements. If they do, it will become much harder for someone to argue their work isn’t “substantially similar” when it’s clearly traced or directly referenced from another’s creation.
• What does “Fair Use” even mean anymore? In the background of this is the Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith, which already put a chokehold on the concept of “transformative” use. That case made it clear that if your new work serves the same commercial purpose as the original, it’s probably infringement. This Ninth Circuit decision will be the next major application of that principle.

Think about the real-world impact. If I’m hired to do a portrait session, and my client has a full sleeve of tattoos based on copyrighted characters or art, who is liable? Am I infringing by creating and publishing a photo of that client? Do I need a release from every single tattoo artist? This ruling could create a legal nightmare, burying independent creatives in liability concerns.

For designers, the line between inspiration and infringement could become razor-thin and brutally enforced. That mood board you created? That illustration style you emulated? The legal risks are about to get very, very real.

My Take: It’s About Damn Time

I’m taking a hard line on this. I side with Sedlik. For too long, the idea of “transformation” has been a fig leaf for straight-up copying. From my roots in a print shop, I learned a simple truth: you respect the work. You don’t take someone else’s carefully crafted asset, run a filter over it, and call it yours.

Von D traced Sedlik’s photograph on a lightbox. She used it as a direct reference while tattooing. Then she used images of the process and the final product to promote her brand on social media. That feels a lot like the commercial exploitation the Supreme Court warned about in the *Warhol* case.

This isn’t about stifling creativity. It’s about protecting the value of a creative act. Sedlik didn’t just snap a picture; he directed the pose, lighting, and composition to create that iconic image. That work has value, and its creator deserves to control how it’s used. Letting someone else replicate it for their own promotion without a license undermines the entire foundation of our industry. It’s the legal version of being asked to work for “exposure.”

We have to stop tolerating the devaluation of our work. This court case is a battle for that principle. I hope the full Ninth Circuit bench comes to its senses and draws a clear, bright line that protects creators, not just appropriators.

The Bottom Line

• The *en banc* rehearing is exceptionally rare and signals the court intends to set a major, binding precedent on copyright law.
• The court is poised to scrap its old, subjective test for copyright infringement, which could make it much easier for original creators to win lawsuits against unauthorized copies.
• For photographers and designers, this ruling will redefine the legal risks of working with existing imagery, especially tattoos, and could force a massive change in how we secure rights and permissions.