Tashina Barber - Factual Findings on Appeal: A Copyright Case

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

When Facts Matter: Ford Motor v. Montana and What it Means for Personal Jurisdiction (an illustrative post by a student in a prior year)

 

 

In today’s polarized society, it seems like there isn’t much that we can all agree on. However, the recent Supreme Court term proved that there was at least one thing all justices could agree on—at least when it comes to one specific set of facts in one specific case. The decision comes from a products liability case in Montana, and at its core is the issue of personal jurisdiction.

We will be learning more about the issue of jurisdiction in the coming weeks, but let’s just start with this: Personal Jurisdiction is the court’s power over the parties in a lawsuit. It is also a due process issue—is it fundamentally fair that a defendant in a lawsuit in one state can be compelled to travel to another state to defend themselves? Personal jurisdiction comes in two forms: general and specific. To illustrate the difference, let’s use the above-mentioned Ford Motor Company v. Montana 8th District Court case as an example. Here is a link that gives a brief summary of the facts and issues in the case. You should review this link before proceeding further. At the core of the case is a claim over a faulty 1996 Ford Explorer. 

Let’s take a look at the key facts:

• Ford Motor Company’s principal place of business is Michigan.
• The injured party was a resident of Montana, where the injury also occurred.
• The car was not initially purchased in Montana, and plaintiff did not directly purchase the car from the Ford Motor Company.
• The car was not manufactured in Montana.
• Ford maintained a network of dealerships and service centers in Montana.
• Ford advertised and marketed the exact model that caused the injury in the state of Montana at the time it was manufactured.

Given the above facts, the question before the Court was whether it was fundamentally fair for Ford to be required to defend itself in Montana (specific personal jurisdiction), or should the suit take place in Michigan where Ford is based (general personal jurisdiction)? Ford based its argument that the Montana court did not have personal jurisdiction over it on a decision in a 2016 Supreme Court Case: Bristol Meyers Squibb v. California, in which a similar case was dismissed because of a lack of ties between the plaintiffs and the state where the suit took place (California). However, the court found this to be a fundamentally different set of facts {1}. In the Montana case, the court found that Ford did have sufficient ties to Montana to justify bringing a suit there—through its networks of dealerships and advertisements—including advertising the very make and model causing the injury. This, alone, is enough to apply the principal of specific personal jurisdiction in this case {2}.

As you can see—facts matter! Change one or more of the bulleted points above, and the case could have been decided differently. Taking into account this brief summary I wanted to pose two questions:

1. Of the above listed facts, which one would have the biggest impact on the outcome of the case if it were to change?
2. Do you agree with the expanded view of what constitutes specific personal jurisdiction? Why or Why Not?

Footnotes:

{1} https://www.jdsupra.com/legalnews/united-states-supreme-court-clarifies-1772847/

{2} https://law.emory.edu/news-and-events/releases/2021/04/scouts-analysis-ford-motor-company-v.-montana-eighth-judicial-district-court.html

WELCOME TO THE LAWSUITS & LITIGATION CLASS BLOG

    This blog is an integral component of our Lawsuits and Litigation MLS course. The purpose of the blog is to (1) promote out of class discussion on topics related to the course and (2) raise litigation questions or legal issues that are of interest to you so they may be discussed in class. You will be making posts and comments on the blog throughout the semester. See the course syllabus for details.

The blog is private and is not visible to search engines, although if someone learned the Blog URL they could access it.  Only blog authors (myself and you all) may make posts or comments.  The blog uses the Blogger platform, which is a Google product. Consequently, you must have a Gmail account in order to post on the blog.

We are going to have a great semester!

Cheers,

Randy