Ninth Circuit Finds Use of Street Art in Green Day Concert Video A Fair Use

September 9, 2013

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by Josh Wolkoff, Esq. and Nancy Wolff, Esq.

The Ninth Circuit recently nixed a street artist’s copyright infringement lawsuit against Green Day, finding that the band’s unauthorized incorporation of the artist’s work, Scream Icon, into its concert video backdrop was sufficiently transformative to be considered a fair use under copyright law. Dereck Seltzer v. Green Day, Inc., et al., Case No. 2:10-cv-02103.

In 2003, Dereck Seltzer created Scream Icon – a monochromatic illustration depicting a contorted, screaming face. In addition to selling and giving away large posters and stickers of Scream Icon, Seltzer plastered his work on walls and city streets throughout Los Angeles.

In anticipation of the band’s efforts to promote its 2009 album, 21st Century Breakdown, Green Day hired a videographer and set designer, Roger Staub, to develop video backdrops for each song in its 2009-2010 tour set list. To create the backdrop for Green Day’s song “East Jesus Nowhere,” Staub photographed a wall on Sunset Boulevard bearing a weathered version of Seltzer’s Scream Icon. Staub cut out the image of Scream Icon and modified it by covering the work with a large red crucifix. Staub then incorporated the modified Scream Icon, along with other visual elements, into a four-minute long time lapse photography sequence. Throughout the entire video, Staub’s modified Scream Icon appears at the center of the frame, affixed to a brick wall. Along the way, graffiti artists can be seen adding new art, posters and graffiti tags, and other iconography to the wall, including at least three images of Jesus Christ.

When Seltzer became aware of Green Day’s use of Scream Icon, he obtained a registration for his work with the US Copyright Office, and subsequently filed suit in March of 2010. The U.S. District Court granted summary judgment in favor of the defendants on the grounds that the video backdrop constituted a non-infringing fair use pursuant to 17 U.S.C. 107, and awarded attorneys’ fees to the defendants as the prevailing party.

The three-judge panel unanimously affirmed the District Court’s summary judgment, finding that the defendants’ appropriation of Scream Icon constituted fair use, but vacated the lower court’s award of attorneys’ fees.

The Ninth Circuit considered the four-factor fair use test: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyright work; (3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work.” 17 U.S.C. § 107.

In evaluating the first factor, courts are guided by whether the new work is transformative in nature; i.e., whether the new work adds something different, by furthering the purpose of the original work or altering its meaning. In the Ninth Circuit’s view, Staub intended to use Scream Icon for a different purpose than was originally intended by the artist: to comment on the hypocrisy of organized religion. By adding religious imagery to the work, the Court found that Staub transformed the original message and aesthetics of Scream Icon. Even though Scream Icon was used in conjunction with Green Day’s concerts – an obvious commercial enterprise –the Court regarded the new use as merely “incidentally commercial,” since the band did not use the art to promote the concert, sell CD’s or merchandise. As a result, the first factor weighed in Green Day’s favor.

The second factor, which considers whether the underlying work is the kind of creative and expressive work that is “closer to the core of intended copyright protection,” weighed only slightly in Selzter’s favor. Here, the panel put a premium on the artist’s ability to control the first public appearance of the original work. Green Day did not deprive the artist of that right, as Seltzer widely disseminated Scream Icon as street art throughout Los Angeles and on the Internet.

The Court accorded very little weight to the third factor, which considers the amount appropriated. Because Scream Icon was not “meaningfully divisible” – Green Day could not have used anything less than the entire work – this factor slightly favored the defendants.

Finally, with respect to the impact of Green Day’s use on the potential market for or value of Scream Icon, the Ninth Circuit observed that the record was devoid of any evidence of harm to Seltzer’s work. Seltzer testified, time and again, that although he believed the work was subjectively tainted by Green Day’s use, there was no cognizable market harm. With sparse evidence of any licensing history for Scream Icon, Seltzer was unable to tip this factor in his favor.

Ultimately, the Ninth Circuit found that the “new message” conveyed by Green Day’s use of Scream Icon was transformative in nature and therefore a fair use. Although the four factors were split, the court noted that the first and fourth factor where generally viewed as the most important and upheld upheld the district court’s findings on summary judgment. On the issue of attorney’s fees, however, the Ninth Circuit conceded that it was a “close and difficult case” – with two fair use factors weighing in Green Day’s favor (and one being neutral) – it vacated the award of attorneys’ fees by the lower court. So even though Seltzer lost the case and Green Day succeeded on its fair use defense, Seltzer’s case was not regarded as objectively unreasonable to warrant an award of fees.

This case demonstrates the difficulty in determining from the onset, whether artwork incorporated into another work without consent, falls within the fair use doctrine and is immune from liability, or is an unauthorized derivative work requiring consent from the copyright owner. Courts frequently struggle with these issues and, as Seltzer v. Green Day demonstrates, there may be some reluctance to shift fees to the losing party in the case of a close call.