Sedlik v. Von Drachenberg: All About That Intrinsic Test? (Guest Blog Post)

by guest bloggers Bruce Boyden (Marquette Law) & Zahr Said (Santa Clara Law) On June 9, the Ninth Circuit granted rehearing en banc in Sedlik v. Von Drachenberg, agreeing to reconsider the test for infringement first adopted in Sid & Marty Krofft v. McDonald’s back in 1977. At the time, we had just begun work on a joint project looking at copyright infringement doctrine generally, but we immediately pivoted to writing an amicus brief. Why ruin three perfectly good summer weeks in this way? This is the best opportunity the Ninth Circuit has had in decades to not only abandon its idiosyncratic approach to substantial similarity, but to take the lead by adapting copyright infringement doctrine for the age we are in now, when infringement cases often go to a jury. It could be a long time before another chance presents itself. We’ll get to our specific proposal in a future post, but in this post we want to focus on how to frame the issue coming up before the full(ish) court, which will…