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Green Day Wins Fair Use Claim

Left: Green Day's set, Right:  Derek Setzer's "Scream Icon"
Left: Green Day’s stage design, Right: Derek Setzer’s “Scream Icon”

On Thursday, the Ninth Circuit Court of Appeals in California ruled that Green Day’s use of Derek Seltzer’s “Scream Icon” was Fair Use.

The artwork in question is Mr. Seltzer’s image of a shrieking woman’s face a la Munch, which he pasted as posters and stickers in public areas around Los Angeles in 2009.

Green Day, which has sold 70 million records worldwide since 1987, used a transformed version of the image as a stage backdrop during the song “East Jesus Nowhere” during the band’s 2009 American tour and also during their performance at the American Music Awards.  The set designers added a red cross and black streaks over the face of Mr. Setzer’s black and white image.  Additionally, the image was adapted into a video format and not used as a fixed poster.

Green Day performing at the American Music Awards
Green Day performing at the American Music Awards in 2009

The Appeals Court affirmed the 2011 Federal Court ruling which dismissed Mr. Seltzer’s copyright complaint.  Represented by William Nathan Canby and Todd Bonder of Rosenfeld, Meyer & Susman, LLP, Mr. Seltzer sought $150,000 for each infringement.  Mr. Setzer argued that the use of the image, “[t]ainted the original message of the image and . . .  made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with . . . I make an image, I produce it, I tailor it to my needs, the concept, the content, and then someone comes along, defaces the image, put a red cross on it.  I mean, maliciously devalues the original intent and then shows it to thousands upon thousands of people.”

This case follows closing the decision of Fair Use in Cariou v. Prince 784 F. Supp. 2d 337 (2011) this June.

The ruling breaks down the four codified elements in 17 U.S.C § 107 used to determine Fair Use.  The opinion for the Ninth Circuit Court, authored by Judge Diarmuid F. O’Scannlain, was based on these four factors:

  1. Purpose and Character of Use: “the purpose and character of the use was transformative because the video altered the expressive content or message of the illustration.”  He explained further that Green Days use provided  “new information, new aesthetics, new insights and understandings” different than Mr. Seltzer’s original work and was therefore transformative.
  2. Nature of Copyrighted Work: “the illustration was a creative work, but its nature included its status as a widely disseminated work of street art.”
  3. Amount and Substantiality of the Portion Used: “the defendant copied most of the illustration, but it was not meaningfully divisible.”
  4. Effect on the Market: “the video backdrop did not affect the value of the illustration” and “The purpose and character of the use was transformative and not overtly commercial.”
Green Day at the American Music Awards in 2009
Green Day at the American Music Awards in 2009

Judge O’Scannlain also cited Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994), which ruled that the Fair Use doctrine “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.”

Interestingly, the Court held that Mr. Seltzer’s work as “clearly identifiable” in the video and his claim was not “objectively unreasonable.”  The Ninth Circuit decision refused Green Day request for legal fees. Judge O’Scannlain explained that “[v]acating the district court’s award of attorney’s fees to the defendants under the Copyright Act, the panel held that, despite the defendants’ success on the fair use defense, the plaintiff did not act objectively unreasonably.”

For coverage on the Cariou v. Prince case visit: “Is Cariou v. Prince Headed to the Supreme Court?” and “Appropriate Standards in Appropriation Art? Cariou v. Prince Decision Garners Relief but Fails to Provide Substantive Guidance.”

Sources: Dereck Seltzer v. Green Day, Inc.; “Judge Upholds Green Day’s Right to Use Artist’s Image for Concert, ” The New York Times, August 8, 2013; “Green Day Triumphs in Copyright Case, Use Transformative,” Clancco, August 9, 2013; “Green Day Sued by Artist Over Copyright,” Hyperallergic, March 26, 2010.