Scream as he might, a street artist whose work was used in giant video backdrop can’t prevail in his lawsuit against the rock band Green Day, the U.S. Court of Appeals for the Ninth District says. The appellate judges in Pasadena ruled in favor of the band, affirming summary judgment by the district court in the lawsuit filed by artist Dereck Seltzer alleging violations of the Copyright Act and Lanham Act for the unauthorized use of his artwork.
Richard Staub, a professional photographer and set designer, was hired to create the video backdrops for Green Day’s 2009-10 concert tour for their album 21th Century Breakdown. For the song East Jesus Nowhere, Staub used a photo he shot of a Hollywood brick wall covered with graffiti and posters, including a weathered and torn copy of Scream Icon, created by Seltzer in 2003.
Seltzer had taken his image of a screaming and contorted face and made it into posters and stickers. He sold and gave these away and many were plastered on walls in Los Angeles as street art.
In his video, Staub modified his photograph of Scream Icon, adding a large, spray-painted red cross over the screaming face. His video was the backdrop for Green Day concert performances and their 2009 MTV performance. Seltzer learned about and unsuccessfully tried to resolve use of his work. He then registered a copyright in Scream Icon, sent a cease-and-desist letter to Green Day; he sued claiming copyright infringement and Lanham Act violations.
Green Day sought summary judgment and it was granted by a federal district court. The judge there found the video backdrop was a fair use under 17 U.S.C. §107 and that Seltzer had failed to establish trademark rights for his Lanham Act claims. The lower court also granted Green Day’s motion for attorney’s fees of $201,012.50, finding Seltzer’s claim objectively unreasonable.
On appeal, U.S. District Judge Diarmund O’Scannlain agreed. In determining fair-use, the court looked at four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the part used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the protected work. The court found the four-minute video transformative of the original art. While Scream Icon appears prominently, it is just part of a street-art focused video about religion.
O’Scannlain saw directionless anguish in the screaming face in Seltzer’s original, which as a creative work was entitled to strong protection. But because the artist controlled his work’s first showings, then widely distributed his art, this added to Green Day’s argument of fair use. Further, though the entire image appears in the video, the appellate court saw this as necessary to the piece’s overall transformation — with evidence showing that Green Day’s video backdrop did not perform the same function as the original street art and did not detract its market potential or value.
The appellate court did deem the artist’s litigation reasonable and vacated the district court’s award of attorneys’ fees.
As for the Green Day and East Jesus Nowhere, here’s that live MTV performance: