United States: Use Of Third-Party Artwork In Video Backdrop Is Fair Use

Seltzer v. Green Day, Inc., et al

The U.S. Court of Appeals for the Ninth Circuit affirmed that the unauthorized use of an artist's illustration in a video backdrop featured in rock band Green Day's stage show did not violate the Copyright Act, finding, in part, that the use was sufficiently transformative and did not affect the market value of the work. Seltzer v. Green Day, Inc., et al, Case Nos. 11-56573, -57160 (9th Cir. Aug. 7, 2013) (O'Scannlain, J.)

Artist Derek Seltzer created Scream Icon, an illustration of a screaming, distorted human face, and sold posters and prints of the image, many of which were affixed to public walls and used as street art. Defendant Green Day, a multi-platinum Grammy-Award-winning rock band, used various video backdrops during its live stage show tour in promotion of the band's album 21st Century Breakdown. The backdrop displayed during the song "East Jesus Nowhere" constituted a four-minute video featuring various graffiti and street art, including religious imagery, with Scream Icon prominently and centrally featured for the duration of the video. The image of Scream Icon was altered with the addition of a red "spray-painted" cross over the middle of the face and featured different contrast and color than Seltzer's illustration. Seltzer registered Scream Icon with the U.S. Copyright Office and sued Green Day and the makers of the video backdrop for copyright infringement and violations under the Lanham Act. The district court found that incorporating Seltzer's illustration in the video backdrop was fair use under the Copyright Act and granted summary judgment to defendants on all claims. The district court also awarded defendants $200,000 in attorneys' fees on the grounds that plaintiff's claims had been "objectively unreasonable." Seltzer appealed.

Applying the four factors of the fair use test under § 107 of the Copyright Act, the Ninth Circuit affirmed the district court's fair use finding. As for the first factor, the Ninth Circuit found that the band's use of the Scream Icon illustration was sufficiently transformative. Defendants used the Scream Icon as a component of "street-art focused music video about religion and especially about Christianity;" and a spray-painted cross was painted over the illustration and the imagery was displayed during the defendant's song "East Jesus Nowhere," which discussed religious hypocrisy. Plaintiff acknowledged that the message and meaning of his original Scream Icon did not involve religion. Although the Ninth Circuit concluded that the second fair use factor weighed slightly in favor of the plaintiff, because Scream Icon was a creative work entitled to strong protection, the Court reasoned that the third and fourth fair use factors favored defendants. Although defendants copied substantially all of Scream Icon quantitatively and qualitatively, the illustration was not meaningfully divisible. Lastly, the Ninth Circuit held that there was "no reasonable argument" that defendants' use of Scream Icon could usurp the primary market for plaintiff's art, because the illustration was never used on merchandise or albums and was featured for roughly four minutes of a three-hour stage show, and plaintiff repeatedly testified that the value of his work was unchanged despite defendants' unauthorized use. Therefore, the Ninth Circuit affirmed the district court's grant of summary judgment as to plaintiff's copyright claims.

The Ninth Circuit likewise affirmed the district court's grant of summary judgment on Seltzer's Lanham Act claims because there was insufficient evidence that Scream Icon functioned as a trademark. However, the Court vacated the award of attorneys' fees to defendants because Seltzer's case was not "objectively unreasonable" and there was no reason to believe that Seltzer should have known that his case would not be successful.

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