Ninth Circuit Clarifies Copyright Similarity Tests

Two January 2026 choices from the US Courtroom of Appeals for the Ninth Circuit verify that copyright infringement requires substantial similarity in protectable expression, confirmed via each extrinsic and intrinsic checks. Yonay v. Paramount Footage Corp. demonstrates strict utility of filtration ideas and the constraints of selection-and-arrangement theories at abstract judgment. Sedlik v. Von Drachenbergin contrast, underscores the central and more and more contested function of the intrinsic check at trial, even when extrinsic similarity proof is substantial. Yonay v. Paramount Footage Corp.Case No. 24-2897 (ninth Cir. Jan. 2, 2026) (Hurwitz, MillerSung, JJ.); Sedlik v. Von Drachenberg, et al.Case No. 24-3367 (ninth Cir. Jan. 2, 2026) (Wardlaw, Mendoza Jr., Johnstone, JJ.) (by the courtroom) (Wardlaw, Johnstone, JJ., concurring).

The extrinsic check examines goal similarities in protectable expression after excluding unprotectable components whereas the intrinsic check asks whether or not an unusual affordable observer would understand substantial similarity in expression with out skilled steerage.

Yonay v. Paramount Footage – “High Weapons”

Ehud Yonay authored and owns a copyright in “High Weapons,” a 1983 journal article in regards to the US Navy Fighter Weapons Faculty, popularly generally known as “High Gun.” Yonay sued Paramount Footage, alleging that its 2022 movie High Gun: Maverick infringed that copyright. The district courtroom granted abstract judgment for Paramount, and Yonay appealed.

The Ninth Circuit utilized the extrinsic check and rigorously filtered out unprotectable components, together with factual materials in regards to the High Gun program, inventory scenes, and high-level themes. The Courtroom concluded that the similarities recognized by the plaintiffs existed solely at an summary degree and didn’t contain protectable expression. Though “High Weapons” comprises vivid prose and an revolutionary narrative construction that qualify as protectable expression, none of that expression appeared within the movie. The Courtroom defined that even below a selection-and-arrangement concept, courts should filter out unprotectable components and decide whether or not the works share a protectable “sample, synthesis, or design.” After doing so, the Courtroom concluded that the similarities recognized by the plaintiffs consisted of unprotectable information and concepts relatively than authentic expression.

As a result of the intrinsic check is reserved completely for the trier of reality, solely the extrinsic check was related on the abstract judgment stage. The Ninth Circuit additionally decided that the district courtroom didn’t abuse its discretion in excluding the plaintiffs’ skilled, whose evaluation didn’t adequately filter out unprotectable components and due to this fact relied closely on similarities in information and summary concepts, rendering his opinions unhelpful.

The Ninth Circuit affirmed abstract judgment for Paramount, holding that High Gun: Maverick was not considerably just like the article “High Weapons.”

Sedlik v. Von Drachenberg, et al. – Miles Davis {photograph}

Jeffrey Sedlik owns a copyright in his {photograph} of Miles Davis. Sedlik sued Katherine Von Drachenberg and her tattoo parlor, Excessive Voltage Tattoo, alleging copyright infringement primarily based on Von Drachenberg’s use of the {photograph} as a reference to create a tattoo depicting Davis’s likeness, the creation of a preliminary sketch, and the posting of associated photos on social media. After a jury trial, the district courtroom entered judgment in favor of Von Drachenberg and Excessive Voltage Tattoo, and Sedlik appealed.

Sedlik sought assessment of the district courtroom’s denial of his movement for abstract judgment, arguing that the courtroom misapplied the extrinsic check. The Ninth Circuit held that this ruling was not reviewable as a result of it didn’t current a purely authorized query unbiased of disputed information.

Sedlik additionally appealed the denial of his renewed movement for judgment as a matter of regulation, contending that no affordable juror may discover a lack of considerable similarity. The Ninth Circuit rejected this argument, emphasizing that the intrinsic check is uniquely suited to willpower of considerable similarity by the trier of reality as a result of its concentrate on the notion of the unusual observer. Accordingly, the panel declined to disturb the jury’s implicit discovering that the challenged works weren’t intrinsically just like Sedlik’s {photograph}.

As a result of each the extrinsic and intrinsic checks should be happy to ascertain substantial similarity, the jury’s discovering on the intrinsic check was dispositive, and the Ninth Circuit panel defined that it didn’t want to achieve the extrinsic check on attraction.

Concurring within the judgment, Choose Wardlaw, joined by Choose Johnstone, criticized the intrinsic check as essentially flawed. She argued that the check’s concentrate on “whole idea and really feel” conflicts with the Copyright Act’s prohibition on defending concepts or ideas and invitations verdicts unconstrained by copyright doctrine. Choose Johnstone equally urged the courtroom to realign its substantial similarity evaluation with the Copyright Clause, the Copyright Act, and Supreme Courtroom precedent, observing that the intrinsic check has misplaced significant authorized content material over time.

The accused tattoo artwork seems on the precise, and the allegedly infringed {photograph} on the left:

Supply: Sedlik v. Von Drachenberg, et al.Case No. 24-3367 (ninth Cir. Jan. 2, 2026), Opinion at p. 10.

Apply notes:

The Burn resolution reinforces that at abstract judgment, copyright plaintiffs should determine protectable expression or a very authentic and protectable choice and association of components that seems within the accused work. Generalized themes, factual overlap, and summary similarities is not going to suffice.

The Sedlik resolution confirms that the intrinsic check stays a required element of the Ninth Circuit’s substantial similarity evaluation. At trial, a jury’s discovering on intrinsic similarity, or lack thereof, will be outcome-determinative, even the place goal similarities between works seem vital.