“Green Day” Prevails Over Artist’s Copyright Claims

On August 7th, 2013, The US Court of Appeals for the Ninth Circuit (Court) affirmed a lower court’s summary judgment in favour of the rock band Green Day, ruling that the band’s unauthorized inclusion of an artist’s work in a video backdrop was fair use under the US Copyright Act. The appeal concerned artist Derek Seltzer’s Scream Icon, a drawing created in 2003 featuring a screaming face. Green Day’s designer Richard Staub photographed a weathered and torn poster of Scream Icon amongst graffiti art in 2008 on Sunset Boulevard in Los Angeles. Staub later used Seltzer’s image as part of a video backdrop for “East Jesus Nowhere”, a song from Green Day’s album that was performed as part of their stage show. In the video, images of Jesus Christ appear and are defaced several times. Scream Icon remains in the centre of the frame throughout the song and is spray-painted with a large red cross. The contrast and colour of the image is also changed by addition of black streaks running down across the face. The video was meant to convey the theme of the song, which was the “hypocrisy” of religion and the violent acts that had been committed in its name. Seltzer sued the band for copyright infringement in 2010. Green Day primarily argued that Staub’s video background was fair use under the US Copyright Act. Analysis of fair use in the US being a mixed question of law and fact, the Court considered four main factors. The first factor was “the purpose and character of the use”. Although Scream Icon is prominently featured in Staub’s video with few physical changes, the Court found the context in which the image was used altered the expressive content and message of the original work enough to deem the this use “transformative.” The original work was devoid of religious connotation, while the new image “conveys new information, new aesthetics, new insights and understandings that are plainly distinct from those of the original piece.” The second factor was the nature of the copyrighted work. Although Scream Icon is a creative work which merits strong protection under this factor, the work had been widely disseminated on the Internet and on the streets of Los Angeles. This factor weighed only slightly in favour of the plaintiff. The third factor involved the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole. While most of the work at issue was copied, the Court found that the amount that was taken was necessary for the intended expression and use. The last factor was the effect of the use on the potential market for or value of the copyrighted work. Although Seltzer testified that the work had been “tarnished”, the plaintiff admitted that the value and demand for his work had remained unchanged. The evaluation of all four factors led to the court’s conclusion that Green Day’s use of the image was fair. Significantly, however, the Court overturned the order of costs (namely that Seltzer cover Green Day’s solicitor’s fees) because the case was deemed “close” and the claims were not “objectively unreasonable.” Summary by: Elena Iosef