Scream Icon is a drawing by Derek Seltzer (mercifully, not based on that tedious Scream by Edvard Munch). The artist had sold posters and prints of the work, and plastered versions on walls all over Los Angeles -- including one at the corner of Sunset Boulevard and Gardner Avenue. Green Day, the band, hired Performance Environment Design (PED) to provide lighting, pyrotechnics and video backdrops for a 2009 concert. The video sequences included shots of the wall at Sunset and Gardner, with prominent images of the 'weathered and torn copy of Scream Icon' that Seltzer had posted there, but modified to look as though it had been spray-painted and with changes in colour from the original. Seltzer sued Green Day and its members, the photographer who took the picture used in the video, and PED for copyright infringement and various state law claims.
The district court granted summary judgment in favour of the defendants, holding that there had been fair use of the artist's image. The 9th Circuit has affirmed that ruling: Seltzer v Green Day Inc (7 August 2013). One of the central questions was the extent to which the video made 'transformative' (and thus fair) use of the original image, O'Scanlainn J noting that this is 'often a highly contentious topic' in the 'plethora of cases' on infringement, which can be described as 'splintered' in terms of consistency. He was satisfied that the video used Scream Icon 'in a different manner or for a different purpose from the original', resulting in 'the creation of new information, new aesthetics, new insights and understandings' (perhaps a bit much to say of a rock video, but whatev). The fact that the image had been widely disseminated by the artist was also relevant and suggested fair use in the video. Even though the video used the original work in its entirety (a snippet being more likely to be fair use), use of the whole thing was necessary to achieve the video's 'new expression, meaning or message'. The use of the image also had no negative effect on the value of the original; the fact that the artist really just didn't like the video, which 'tarnished' Scream Icon for him, was not enough: he needed to show that his market for the original work had been diminished. Seltzer also failed to show that use of his work was likely to cause confusion or that he had trade-mark rights in Scream Icon.
See also SOFA Entertainment Inc v Dodger Productions Inc (9th Cir 2013) and Prince v Cariou (2d Cir 2013)
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