Cartoon by Mike Twohy/ CartoonStock. Used with permission.
I recall coming across Sedlik v. Von Drachenberg during one of my social media scrolling sessions. The case caught my attention because it involved Kat Von D, a well-known tattoo artist, and a photograph of jazz musician Miles Davis. Photographer Jeffrey Sedlik sued Katherine Von Drachenberg, aka Kat Von D, after she used his copyrighted photo of Miles Davis as a reference for a tattoo. The dispute provides an example of federal jurisdiction and the different roles of trial and appellate courts.
One of the first questions I had was why this case was filed in federal court rather than state court, and I quickly found my way to 28 U.S.C. § 1338. Federal district courts have original jurisdiction over copyright claims, while state courts do not have jurisdiction over copyright infringement claims.
At trial, the case ultimately went before a jury. The jury found that several of Kat Von D’s works, including the tattoo and sketch, were not substantially similar to Sedlik’s photograph. For other images that reproduced the photograph, the jury concluded that the use was fair use. For those interested in more background, the Center for Art Law article “Shhhhhh”: Kat Von D and Tattoo Fan Art – Sedlik v. Von Drachenberg (2021) provides a helpful overview of the photograph, tattoo, and arguments leading to the jury’s decision.
Sedlik appealed. This past January, the Ninth Circuit panel affirmed the district court’s judgment. What stood out to me was the panel’s treatment of the jury’s factual findings. Rather than deciding for itself whether the works were substantially similar, the panel gave deference to the jury as the factfinder. However, the Ninth Circuit later agreed to rehear the case en banc and vacated that panel opinion, meaning the appeal remains an ongoing case.
This case helped me understand that an appeal is not simply an opportunity to retry a case. The jury has an important role in deciding factual disputes, while appellate courts review those decisions under specific standards.
Question: Why do you think appellate courts are reluctant to overturn a jury’s factual findings?
Hypothetical: What if the trial judge, rather than the jury, had decided that the tattoo was not substantially similar to the photograph? Would that change how the appellate court reviewed the decision?
References
28 U.S.C. § 1338 (2018). https://www.law.cornell.edu/uscode/text/28/1338
Center for Art Law. (2021). “Shhhhhh”: Kat Von D and tattoo fan art - Sedlik v. Von Drachenberg. https://itsartlaw.org/art-law/shhhhhh-kat-von-d-and-tattoo-fan-art/
Cornell Law School, Legal Information Institute. (n.d.) Fair use. https://www.law.cornell.edu/wex/fair_use
Sedlik v. Von Drachenberg, No. 24-1869 (9th Cir. 2026). Google Scholar. https://scholar.google.com/scholar_case?case=13486228210150193593&q=Sedlik+v.+Von+Drachenberg&hl=en&as_sdt=6,45
United States Courts. (n.d.) U.S. federal courts circuit map. https://www.uscourts.gov/file/document/us-federal-courts-circuit-map
I think appellate courts are reluctant to overturn a jury's factual findings because of the standard of review generally applied to them. Our readings in M&H in module one discuss appellate courts and their role, and states that, for factual determinations by a jury, "[l]ike a trial judge, the jury is in the best position to make findings of fact, and it does so in a trial that can't be replicated or viewed at the appellate level," (59) a position which, when taken as the basic understanding on which appellate courts approach a case on appeal, explains standard of review -"substantial deference"- given to trial court findings of fact.
ReplyDeleteIf the trial judge, instead of a jury, made the determination, the standard of review changes from "substantial deference" to "clearly erroneous", wherein the appellate court must reach the point of being "left with the definite and firm conviction that a mistake has been committed," (52) which I think is a relatively similar standard of review, if perhaps more difficult to reach. I don't think there would be a substantial change to the findings in this case in this instance.
Citations:
Wayne McCormack & Louisa Heiny, Judicial Process: Cases and Materials (West Academic 2017)
Great post, Tashina!
ReplyDeleteTo address your question about why appellate courts are so reluctant to overturn a jury's factual findings, I feel like it really comes down to the division of labor in our court system and the firsthand nature of a trial. The jury sits in the courtroom for days, watching witnesses testify, observing their body language, and looking directly at the evidence, like the photograph and the tattoo. Because appellate judges only read written transcripts after the fact, they recognize that the jury had the best seat in the house to weigh credibility and evaluate the facts. On top of that, the Seventh Amendment protects the jury's role as the primary "factfinder." To overturn a jury's factual verdict, an appellate court must find that no reasonable jury could have reached it based on the evidence, an intentionally high bar designed to respect the jury process.
If a trial judge had made the decision instead of a jury in a bench trial, the overall standard of review would remain very similar, though the appellate court would inspect the decision through a slightly different lens. Under Rule 52(a) of the Federal Rules of Civil Procedure, an appellate court reviews a judge’s factual findings under the "clearly erroneous" standard. This means the higher court still gives the trial judge significant deference and will overturn the decision only if it has a "definite and firm conviction that a mistake was made." The main practical difference is that a judge must write out detailed, step-by-step findings of fact and conclusions of law, whereas a jury usually just returns a basic verdict form. That written record gives the appellate court a clearer roadmap to check for mistakes, but the general rule still holds true, appellate courts prefer to review legal errors rather than re-weigh the facts.
https://www.law.cornell.edu/rules/frcp/rule_52
I really like the input you provided regarding this topic. Especially the outline of the specific role that the jury plays as a fact-finding entity. With our discussions surrounding different courts, or even on a broader lens, the different branches of government we have discussed in our various classes, it is clarified the importance that the division of labor and the role of each entity is not compromised.
DeleteWhat Kendra and Evelin said... Another point that came to mind for me was court efficiency, which seems to have a strong role in the legal system. This scenario exemplifies a procedure that prioritizes court efficiency and draws a line between jury decisions and questions left for an appellate court to review. If every appeal became a chance to reweigh the evidence and decide the facts all over again, trials would lose much of their purpose, and appellate courts would be flooded with parties hoping for a second bite at the apple. There's also the practical reality that the jury was actually in the courtroom. They saw the photograph and the tattoo side by side, heard the witnesses, and watched how everyone testified. An appellate panel is working from a written record, so it makes sense that they would "defer" to the people who experienced the evidence firsthand. On top of that, the Seventh Amendment protects the right to a jury trial in civil cases and limits how facts found by a jury can be reexamined, so the deference isn't just about efficiency but about respecting the jury's constitutional role.
ReplyDeleteAs for the hypothetical, I think the appellate court's role would still come down to checking for errors rather than redoing the trial. If the trial judge had decided the tattoo wasn't substantially similar in a bench trial, the Ninth Circuit would review those findings for "clear error" under Federal Rule of Civil Procedure 52(a)(6). The appellate court would ask whether the judge made a mistake that leaves it with a firm conviction that the decision was wrong. Personally, I think this error check is an important safeguard when a decision rests with a single judge rather than a jury. It helps protect against the possibility that one person was persuaded too far in one direction by a party or had some bias toward a party. It also protects the judge, since having that review in place can guard against accusations of unfairness. Most importantly, it protects the rights of the parties, especially a defendant who believes bias may have influenced the outcome, by providing a path for the decision to be reviewed. Either way, the takeaway seems to be the same: the appellate court's job is to check for errors, not to redo the trial.
Great job, Tashina! I agree that this case is a good example of why appellate courts do not simply retry a case. I think appellate courts are reluctant to overturn a jury's factual findings because the jury heard the evidence, saw the witnesses, and could evaluate their credibility. The trial court is in a better position to make those factual determinations than an appellate court that is reviewing the case from the record.
ReplyDeleteAs for the hypothetical, I think the standard of review could change if the trial judge made the decision instead of the jury. The appellate court would still give deference to the trial court's factual findings, but the applicable standard would depend on whether the issue was considered a question of fact, law, or a mixed question.
Great post Tashina, this was an interesting case. Everyone has made great points as to why juries are in the best position to find the facts in the case. We know a large percentage of communication is non-verbal. Think about how facial expressions, tone of voice, and body language all play a critical part of role in how we evaluate the truthfulness of information a person presents. Also, we know a trial by jury is a constitutional right. While our judicial system is not perfect, juries sometimes reach conclusions that others may not agree with. However, if appellate courts just regularly overturned cases because they disagreed with a jury I think that would undermine our fundamental right to a trial by jury.
ReplyDeleteFor the hypothetical, from what I was able to quickly research, Kendra's answer above nails it pretty well as do others. The standard of review changes from "substantial deference" for the jury's finding to "clearly erroneous" standard for the judges finding. Either way, appellate courts are not given much leeway to reweigh the evidence.