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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: You can't erase a tattoo, but can you erase a

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Speaker 2: jury verdict about a tattoo? That's what photographer Jeffrey Sedlick

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Speaker 2: is asking the Ninth Circuit Court of Appeals to do.

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Speaker 2: The photographer sued celebrity tattoo artist Cat von Dee over

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Speaker 2: a tattoo she inked of legendary jazz musician Miles Davis,

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Speaker 2: based on Sedlick's copyrighted photograph of Davis. The jury took

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Speaker 2: only three hours of deliberating before it returned a verdict

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Speaker 2: for Cat Vonde, finding that the tattoo wasn't substantially similar

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Speaker 2: to the photo and didn't violate the copyright laws. But

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Speaker 2: on appeal to the Ninth Circuit, the judges seemed to

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Speaker 2: be struggling to understand how the jury could reach that

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Speaker 2: verdict when the tattoo and photo look alike. Here are

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Speaker 2: judges Kim McClain, Wardlaw and Anthony D. Johnstone.

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Speaker 1: We look at it, we say this is the same photograph.

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Speaker 1: Yet through all these machinations it ended up being the

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Speaker 1: jury saying, oh, but it's not substantially similar. And I

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Speaker 1: think it kind of defies rationality to suggest that it's

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Speaker 1: not the same photograph. It is the same photograph, it's

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Speaker 1: on a different medium, So how did the jury get

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Speaker 1: where it got?

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Speaker 3: But I think we've also said that just transferring out

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Speaker 3: onto a different medium can't alone be a difference, right,

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Speaker 3: We're looking at similarities rather than differently. So if you

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Speaker 3: have everything else is the same and we're just going

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Speaker 3: to change it from being on photo paper to someone's skin,

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Speaker 3: how's that?

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Speaker 2: But even if the judges thought the jury was wrong,

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Speaker 2: what could they do about it? The Ninth Circuit has

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Speaker 2: never reversed a jury verdict on substantial similarity A subjective

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Speaker 2: test joining me to answer these questions that the judges

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Speaker 2: struggle with is intellectual property litigator Terrence Ross, a partner

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Speaker 2: at Catin Yutchen Rosenmann. Terry, will you explain the test

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Speaker 2: used here for copyright infringement?

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Speaker 4: So in order to prove up a case of copyright infringement,

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Speaker 4: you have to show ownership of a registered copyright and

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Speaker 4: proof of infringement. The test for infringement in the Ninth

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Speaker 4: Circuit where this case takes place is well developed over

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Speaker 4: many years. A little bit complicated, but very well developed,

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Speaker 4: and it's a two part test with respect to substantial similarity. First,

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Speaker 4: there is what's known as the extrinsic test, which is

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Speaker 4: really an objective test, a fancy word for saying objective test,

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Speaker 4: and that's undertaken by the court by the judge who

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Speaker 4: determines whether or not there are objective elements that have

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Speaker 4: been copied that constitute the literary works expression in this case,

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Speaker 4: the photographic works expression, so is their reason to believe

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Speaker 4: that a protected element of the work was copied. Now,

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Speaker 4: this is easier to do, in my opinion, in cases

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Speaker 4: of photographs, then in movies, television shows, plays books where

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Speaker 4: small portions are copied and they slightly change the characters

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Speaker 4: or the setting or the plot, and their judges are

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Speaker 4: really presented with a challenging first step in this infringement

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Speaker 4: process that they have to undertake to determine whether or

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Speaker 4: not protected elements of copyright we're infringed, and they get

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Speaker 4: help from experts on that. The second step, assuming that

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Speaker 4: the copyright owner passes the first test, which is sort

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Speaker 4: of a gatekeeping function that the judge performs, the judge

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Speaker 4: that allows the infringement charge through the gate so to

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Speaker 4: speak to the jury, and then the jury looks at

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Speaker 4: the two works engages what's done as an intrinsic test,

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Speaker 4: which is essentially a subjective review. And the expression you

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Speaker 4: often here used in the case law is does the

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Speaker 4: look and feel of the copy work constitute an infringement

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Speaker 4: i e. An improper copying of the original work. So

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Speaker 4: there's this two part test. Part one done by the court,

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Speaker 4: part two done by the jury.

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Speaker 2: So the judge in this case allowed the infringement charged

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Speaker 2: through the gate, and the jury decided on the intrinsic

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Speaker 2: subjective test that the tattoo wasn't substantially similar to the photo.

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Speaker 2: But during the Ninth Circuit arguments, Judge Wardlaw said they

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Speaker 2: were struggling to figure out why the jury didn't find

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Speaker 2: that they were substantially similar. She said, it defied rationality

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Speaker 2: and it is the same photo, it's just in a

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Speaker 2: different medium. And it seemed like the other judges agreed

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Speaker 2: with her. Can they say the jury was wrong and

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Speaker 2: reverse the verdict?

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Speaker 4: Not really. There are some rare instances where that's happened

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Speaker 4: in the copyright cases, but not in the context of

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Speaker 4: substantial similarity, I know. But at least two cases out

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Speaker 4: there in the Ninth Circuit that involved the events of

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Speaker 4: day minimous use where he takes what such a small

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Speaker 4: portion of copyright at worked that the law allows you

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Speaker 4: to do it. And I know there have been a

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Speaker 4: couple of cases where the appellate court reversed a jury

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Speaker 4: finding on that. I've never seen it done in the

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Speaker 4: context of substantial similarity case here, and a lot of

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Speaker 4: this battle was lost by the plaintiff when the district

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Speaker 4: court judge, the trial judge ruled that this was not

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Speaker 4: a case of substantial similarity at summary judgment. The copyright

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Speaker 4: owner the photographer had moved for summary judgment saying, look,

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Speaker 4: this is no different than putting a book on a

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Speaker 4: xerox machine. It's literal copyright infringement and we don't need

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Speaker 4: a trial. And the judge discreet said it was not

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Speaker 4: literal copying and said that they would have to proceed

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Speaker 4: to trial on a theory of substantial similarity. And in

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Speaker 4: many respects that cost them the advantage that they had

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Speaker 4: the copyright owner, because then you're putting it up for

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Speaker 4: grabs with a jury. You just don't know how jury's

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Speaker 4: going to come out where you have a celebrity defendant here,

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Speaker 4: kat Van d who's apparently famous tattoo artists in California

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Speaker 4: and potentially you know, more interesting trial counts in the

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Speaker 4: courtroom presenting the case, and by all accounts, the defendants

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Speaker 4: trial attorney did a just fabulous job in the courtroom

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Speaker 4: of getting the jury to understand the process that the

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Speaker 4: tattoo artists went through and how that constituted original art

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Speaker 4: in a way so to Cerner think got out lawyered.

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Speaker 2: In the courtroom, some of the judges asked the photographer's

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Speaker 2: lawyer to psite grounds that would allow them to overturn

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Speaker 2: the jury verdict, and Judge Anthony Johnston saying it appeared

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Speaker 2: to be beyond our review. I mean, is there any

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Speaker 2: way if they feel that it's obvious that this is

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Speaker 2: not substantially similar and that the jury maybe was taken

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Speaker 2: by the celebrity fact, I mean, is there any way

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Speaker 2: that they would reverse the jury verdict?

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Speaker 4: So let me start off by saying this. The council

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Speaker 4: for the photographer who argued before the Ninth Circuit is

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Speaker 4: a well known, well respected copyright lawyer by name of

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Speaker 4: William Patrick. He has written one of the leading treatises

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Speaker 4: on copyright law, was the copyright lawyer for the House

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Speaker 4: of Representatives during several periods of time in which really

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Speaker 4: significant revisions were made for the Copyright Act, and then

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Speaker 4: taught copyright law for a number of years. Very well

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Speaker 4: respected knows copyright law. As you say, this question was

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Speaker 4: put to him before he had completed his first sentence

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Speaker 4: at oral argument before the Ninth Circuit. Can we do this?

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Speaker 4: Can you cite us to authority that allows us to

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Speaker 4: do this? And the only case is he was able

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Speaker 4: to cite too. Were not in the context of substantial

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Speaker 4: similarity cases. They were in other contexts. And certainly from

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Speaker 4: listening to the argument on tape, I came away apparently

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Speaker 4: you do that the judges would not have reached the

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Speaker 4: same verdict as the jury. But we're going to respect

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Speaker 4: the jury's verdict and affirm it. And this is the

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Speaker 4: whole problem with losing on the second part of the test,

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Speaker 4: the intrinsic subjective test that depends on the subjective view

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Speaker 4: the jury as to the look and feel of the

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Speaker 4: two works. You cannot substitute as an appellate judge your

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Speaker 4: opinion for that of the juries, and so I don't

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Speaker 4: see any way that this is going to be overturned.

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Speaker 2: I love this line from Photographer's Council. We don't know

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Speaker 2: what the jury did, and we don't know what the

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Speaker 2: mystery of Stonehenge is either, but we do know the

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Speaker 2: jury should never have done this. It must be frustrating

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Speaker 2: to have, you know, judges see that a jury made

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Speaker 2: a mistake and still can't do anything about it.

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Speaker 4: As a baseball guy, the only analogy I can give

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Speaker 4: you is umpires call them balls and strikes at home.

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Speaker 4: I mean, it's absolutely verboten for a manager or player

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Speaker 4: to challenge the calls of balls and strikes. In some

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Speaker 4: sort of objective sense measured by a robot. The ball

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Speaker 4: may have been slightly outside the plate, but that does

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Speaker 4: not make it a ball. The call of the umpire

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Speaker 4: makes it a strike, and for all purposes it is

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Speaker 4: a strike. And to go around saying, oh, got that

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Speaker 4: call wrong, No, there's no appeal from that. And it's

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Speaker 4: the same with a jury verdict for the most part,

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Speaker 4: absent fraud, jury being bribed or something like that, the

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Speaker 4: jury verdict stands up because you're not allowed to replace

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Speaker 4: your view, your personal views. A judge with that of

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Speaker 4: the twelve men and women of the jury. It simply

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Speaker 4: isn't done in Anglo American law. And that's the problem

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Speaker 4: you here expressed at the oral argument from these judges,

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Speaker 4: they would have decided it differently, but they realized that

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Speaker 4: they're handcuffed.

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Speaker 2: Terry. Judge Johnstone seemed to have some broader concerns.

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Speaker 3: I guess my concern is we're kind of washing out

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Speaker 3: the value in the principle of copyright by allowing a

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Speaker 3: jury to reach unreviewable subjective determinations on an intrinsic test.

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Speaker 4: Well, he's complaining about the test that has been established

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Speaker 4: in the Ninth Circuit, and not just in the Ninth Circuit,

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Speaker 4: in multiple other circuit courts. You know, the sixth Circuit

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Speaker 4: where you have Nashville and Detroit, you get a glock

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Speaker 4: copyright cases. Second Circuit where you have New York, get

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Speaker 4: a lot of copyright case. Seventh Circuit you got get

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Speaker 4: a block copyright cases. All these courts have adopted this test.

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Speaker 4: Although it was pioneered by the Ninth Circuit, that was

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Speaker 4: thirty five forty years ago, and it's lasted the test

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Speaker 4: of time. In the majority of cases, it works in

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Speaker 4: this one case, you might be able to argue the

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Speaker 4: jury got it wrong. I actually, unlike you do, see

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Speaker 4: some differences in the photograph and the patchoo. Now whether

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Speaker 4: or not they're enough to have me vote non infringement,

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Speaker 4: I don't know thought about it enough. But the complaint

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Speaker 4: that the judge here has is fundamentally a complaint about

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Speaker 4: existing law. And in order to change existing law, somebody

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Speaker 4: is going to have to petition for an on bank

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Speaker 4: review at the Ninth Circuit. So what should happen here

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Speaker 4: is the panel of three judges affirms the jury's verdict,

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Speaker 4: and then the photographer the plane files a petition for

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Speaker 4: review on bank, meaning the entire Ninth Circuit. All the

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Speaker 4: active judges of the Ninth Circuit sit and reconsider whether this

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Speaker 4: is the appropriate test, And that perhaps is what is

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Speaker 4: being suggested here. But it is sort of like you know,

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Speaker 4: whistling in the wind. There are always going to be

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Speaker 4: jury verdicts that people think the jury got wrong, and

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Speaker 4: that's gore being civil cases, and that's going to be

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Speaker 4: in criminal cases. It's fundamental to our jurisprudence that we

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Speaker 4: accept that margin of error in order to allow the

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Speaker 4: sort of due process we want to have II to

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Speaker 4: have regular citizens decide cases, and I think it's very

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Speaker 4: misplaced for a pellet judge on a prominent court of

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Speaker 4: appeals like this in effect bad mouth the jury.

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Speaker 2: We've talked about copyright and tattoos before. Does this stand

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Speaker 2: for any broader principle about, you know, tattoos of copyrighted works.

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Speaker 4: I don't believe it does. I don't believe it stands

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Speaker 4: for any broad principle and copyright law generally, both attorneys

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Speaker 4: the attorney for the photographer attorney for the tattoo artist,

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Speaker 4: when asked this question at the Ninth Circuit World Argument,

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Speaker 4: said that they did not believe that decision here impacted

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Speaker 4: more broadly than the dispute between the two parties. And

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Speaker 4: I agree with that. This is a relatively run of

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Speaker 4: the mill copyright case. It doesn't set any new copyright law.

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Speaker 4: It doesn't set any new precedent. And that's why I'm

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Speaker 4: not super concerned about the fact that maybe the jury

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Speaker 4: got it wrong juring leritings don't set precedents, and so

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Speaker 4: the law will continue to be the same man the

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Speaker 4: next jury might have a completely different of a tattoo.

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Speaker 4: But in all cases like this that come back to

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Speaker 4: this fundamental proposition. The courtroom is not a neutral playing ground.

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Speaker 4: It is shaped by the attorneys on either side. And

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Speaker 4: there are attorneys who are really good trial lawyers, who

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Speaker 4: are really good in a courtroom, and who can shape

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Speaker 4: the case and the jury's verdict of the case in

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Speaker 4: a manner that benefits their client. And there are lots

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Speaker 4: and lots of attorneys who don't fit that bill. And

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Speaker 4: that's more often than not, the real explanation for why

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Speaker 4: a particular case comes out one way or the other.

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Speaker 4: For people who simply hire lawyers without considering, well, if

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Speaker 4: this case goes to trial, how good is my guy

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Speaker 4: my girl going to be in the courtroom doing mono

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Speaker 4: and mono battle. And they simply don't consider things like that.

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Speaker 4: And that's a mistake and you get what you deserve

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Speaker 4: when you make that kind of mistake, and you don't

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Speaker 4: hire a really good trial lawyer. And you know, I

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Speaker 4: wasn't there for the trial, but based on what observers

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Speaker 4: did say and everything I've heard about the case, it

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Speaker 4: seems to me that the combination of a celebrity defendant

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Speaker 4: and the defendant out lawyering the plaintiff may have led

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Speaker 4: to what at least these judges on the Ninth Circuit

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Speaker 4: felt was a wrong decision by the jury.

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Speaker 2: Thanks so much, Terry for those insights from an experienced

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Speaker 2: trial lawyer. That's Terrence Ross of Catain Mutchen Rosenman. And

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Speaker 2: that's it for this edition of The Bloomberg Law Show.

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Speaker 2: Remember you can always get the latest legal news on

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Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law,

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Speaker 2: And remember to tune into The Bloomberg Law Show every

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Speaker 2: weeknight at ten pm Wall Street Time. I'm Junie Grosso

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Speaker 2: and you're listening to Bloomberg