9th Circuit En Banc — Copyright 'Total Concept and Feel' Test Under Review (Sedlik v. Von Drachenberg)

us-fed-9th Jun 1, 2026 Tracker lead

A company that licenses, creates, or defends against copyright claims for visual art, music, software, or AI-generated content in the Ninth Circuit may face changed litigation exposure depending on how the en banc court reconfigures the intrinsic-extrinsic test; until the en banc decision issues, any Ninth Circuit copyright infringement assessment based on 'total concept and feel' carries uncertainty about whether the current test will survive intact.

The Ninth Circuit has granted en banc rehearing in Sedlik v. Von Drachenberg to reconsider the copyright 'total concept and feel' test — the intrinsic portion of the Ninth Circuit's two-part infringement analysis — placing the circuit's predominant standard for assessing visual and other copyright infringement in flux; the en banc briefing schedule, composition of the panel, and scope of questions accepted have not been confirmed from a primary source. [UNVERIFIED — docket and order not retrieved.]

What the law is now

The Ninth Circuit has granted en banc rehearing in Sedlik v. Von Drachenberg to reconsider the copyright "total concept and feel" test — the intrinsic portion of the Ninth Circuit's two-part copyright infringement analysis. This test is used to assess infringement for visual art, music, software, and — increasingly — AI-generated content. An en banc reconstitution could narrow or eliminate the current standard. [UNVERIFIED — docket and en banc order not retrieved.]

What just shifted

What this adds: The Ninth Circuit placed its 'total concept and feel' copyright test under en banc review, creating uncertainty about the infringement standard for visual art, AI-generated content, and other creative works in the largest federal circuit by case volume.

What this puts in question: It puts in question whether AI-generated content's relationship to training-data copyrighted works will be assessed under a narrowed or reconstituted standard, and whether industries relying on Ninth Circuit 'total concept and feel' precedent — visual art, music, software, games — need to reassess infringement risk posture pending the en banc ruling.

What clients should weigh

·If your organization has active or anticipated copyright litigation in the Ninth Circuit that relies on — or defends against — the 'total concept and feel' analysis, have you assessed how a narrowed or reconstituted test would affect your position?

·For companies that deploy AI systems trained on visual content, does your legal risk assessment for copyright infringement exposure account for the possibility that the Ninth Circuit may shift the standard used to compare AI outputs to training-data works?

·If you are licensing visual content or settling Ninth Circuit copyright disputes now, does the en banc grant change your settlement calculus by introducing uncertainty about the test that would apply at trial?

·This addresses the Ninth Circuit's reconsideration of the intrinsic-extrinsic copyright infringement test. It does not reach the Second Circuit's substantially similar standard, the Supreme Court's most recent copyright fair use precedent (Warhol v. Goldsmith), or AI training data copyright claims under other theories.

Sedlik v. Von Drachenberg, 9th Cir. (en banc granted 2026)

Ready to use

To-be-edited before sending to a client.

Client alert

Watch item — no client alert until confirmed operative.

Blog post

Watch item — no blog post until confirmed operative.