Green Day's Use of Artists Work in Video Backdrop is Fair Use

Today, the Ninth Circuit didn't portray Green Day as "American Idiot[s];" instead, they affirmed a lower court's ruling in their favor, reports Reuters.

At issue was Green Day's use of Dereck Seltzer's street art, used in a four-minute video backdrop to one song in Green Day's 2009-10 21st Century Breakdown Tour. Seltzer claimed copyright infringement and violations of the Lanham Act. The district court granted Green Day's motion for summary judgment and awarded attorney's fees.

The Ninth Circuit affirmed the grant of summary judgment on the copyright and Lanham Act claims, but vacated the award of attorney's fees.

The Alleged Infringement

Dereck Seltzer is a street artist who created Scream Icon in 2003, an illustration of a screaming face. He plastered this image on walls in Los Angeles, and made stickers which he sold and gave away.

In 2008 Roger Staub, a photographer, and video/set designer photographed a worn, torn copy of Scream Icon in an alley in Los Angeles. He saved the photo in his photo library. Years later, when approached by Green Day to create the video backdrops for the 21st Century Breakdown Tour, Staub found inspiration in Scream Icon.

Staub used Scream Icon as the basis for a four-minute video for a song "East Jesus Nowhere" -- a song about the hypocrisy of religion. Staub added a spray-painted red cross over the image, and the image was used along with other imagery in the video. Seltzer found out about the use of Scream Icon, and after sending a cease-and-desist letter to Green Day, the band stopped showing the video as part of their backdrop. This suit then followed.

Fair Use

The Ninth Circuit found Green Day's Fair Use argument persuasive. Applying the standard set forth by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., the court found that the factors weighed in favor of Green Day. Most significantly, the court found that Staub's work was transformative because it gave the Scream Icon new meaning and the icon's value was not affected. The fact that the image was not used in the sale of merchandise was also persuasive.

Street Artists Beware

This case is a matter of significance because a great deal of gallery artists are getting their start as street artists. This case has shown that the fact that these artists are widely and publicly disseminating their works may be used against them later on in a Fair Use defense.

To adequately protect themselves, artists should be advised to be able to determine a value for their works. That they are showing in galleries now may help them do that.

Related Resources:

• Richard Prince: Fair Use or Derivative Copyright Infringement? (FindLaw's U.S. Second Circuit Blog)
• Class Cert. Vacated; Evaluate Google's 'Fair Use' Defense First (FindLaw's U.S. Second Circuit Blog)
• Can South Park Get a 'What What'? 7th Circuit Says Its Fair Use (FindLaw's U.S. Seventh Circuit Blog)