Kat Von D Tattoo Copyright Case: Judges Doubt Jury Verdict

Copyright Infringement Test

• 🎯 To prove copyright infringement, one must show ownership of a registered copyright and proof of infringement.
• ⚖️ The Ninth Circuit uses a two-part test for substantial similarity: the extrinsic test (objective, for the court) and the intrinsic test (subjective, for the jury).
• 🔑 The extrinsic test determines if objective elements of expression were copied, acting as a gatekeeping function for the judge.
• 🎨 The intrinsic test, performed by the jury, assesses if the "look and feel" of the copied work constitutes infringement.

Ninth Circuit's Doubts

• 🧐 Judges on the Ninth Circuit expressed skepticism about the jury's verdict, finding it difficult to reconcile the tattoo and the copyrighted photo.
• 🗣️ Judge Wardlaw noted that the tattoo and photo appeared to be the "same photograph" despite being on different mediums, questioning the jury's finding of non-substantial similarity.
• ❓ The judges struggled to find grounds to overturn the jury's verdict, as the Ninth Circuit has rarely reversed jury findings on substantial similarity.

Legal Precedent and Limitations

• 🚫 The Ninth Circuit has not historically reversed jury verdicts based on substantial similarity, a subjective test.
• 📉 The plaintiff's case may have been weakened when the trial judge denied a motion for summary judgment, sending the issue of substantial similarity to the jury.
• 🧑‍⚖️ Appellate judges are generally unable to substitute their own view for that of the jury, even if they believe the jury made a mistake.
• ⚾ An analogy was drawn to baseball umpires calling balls and strikes; their calls are final, with no appeal for objective measurement.

The Role of Attorneys and Juries

• 🏆 The outcome of the trial may have been influenced by the defense attorney's skill and the celebrity status of Kat Von D.
• 🧠 The expert litigator suggests that the jury's verdict might have been affected by the defendant's attorney effectively presenting the tattoo as original art.
• ⚖️ While judges may disagree with a jury's determination, they are often "handcuffed" by legal precedent and the fundamental principle of allowing citizens to decide cases.
• ❓ The case is considered relatively run-of-the-mill and unlikely to set new copyright law precedent, as jury verdicts do not establish new law.