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With Victory for Green Day, the West Coast Weighs In On the Fair Use Debate

Note: This story is being revised to include a comparison between this case and recent fair use ruling in appropriation art. For in depth coverage of this story, please see our post: Green Day Wins Fair Use Claim.

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On August 8, 2013, the United States Court of Appeals for the Ninth Circuit in California ruled in favor of the American rock band Green Day against the infringement claims of illustrator and street artist Dereck Seltzer, when the band used his work “Scream Icon” in a video backdrop during its ‘21st Century Breakdown’ tour in 2009 without the artist’s permission. “Scream Icon” consists of a black and white image from 2003 that depicts the contorted face of a shrieking woman.

Seltzer has made several posters of the image, which he has sold and given away. Roger Staub, a photographer and professional set lighting and video designer, took a photograph in 2008 of a street corner on Sunset Boulevard in Los Angeles that displayed a poster of “Screaming Icon” visible on a brick wall. Green Day had used the image – altered by a large red crucifix across it – as a concert backdrop while performing “East Jesus Nowhere.”  Mr. Seltzer sued Green Day in 2010, after the band apparently offered him concert tickets as settlement.

Green Day was able to defend itself against Seltzer’s infringement claims because the Ninth Circuit determined that the band’s unauthorized use of the artist’s image was fair. Fair use is a defense to copyright infringement that permits a defendant to borrow aspects of an original work for purposes such as commentary, criticism, news reporting, scholarship, or to create works that are “transformative.” A finding of fair use is a close, fact-specific inquiry that considers four factors, including the purpose and character of the use, the nature of the copyrighted work, the amount and sustainability of the portion taken, and the effect of the use on the potential market.

Proper applicability of the fair use defense has long been debated. In a recent closely-watched case that ended in New York’s Second Circuit Court, Cariou v. Prince, the Court ruled in favor of appropriation artist Richard Prince. However, the decision was criticized for not providing sufficient guidance to future artists and lawyers to help determine what specifically constitutes a “transformative” use. Both cases turned on an analysis of the first fair use factor–whether the new works created by the alleged infringers could be considered “transformative” of the original works. Should the type or medium of art considered make a difference? From comparison of the cases, this line appears fuzzier when it comes to appropriation art.