Rock band Green Day wins lawsuit alleging copyright infringement in ‘street art’ used in concert performances

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by Charles Miller

The Ninth Circuit federal court of appeals has affirmed a decision that the rock band Green Day did not infringe artist Dereck Seltzer’s “Scream Icon.” The artist’s image of an anguished human face was used as part of a video backdrop for the band’s live stage show. The federal court held the band’s use of the image was a “fair use” under the Copyright Act.

“Scream Icon” shows a human face contorted in the expression of a scream. As street art, the image was put on posters and stickers plastered on public spaces in Los Angeles. Seltzer sued Green Day and others involved for copyright infringement over the use of his “Scream Icon” image in a composite picture for a video played during live performances of the song “East Jesus Nowhere.” The court of appeals affirmed the district court’s summary judgment in favor of the band, finding that the video was fair use and that the artist failed to establish any trademark rights.

U.S. District Judge Philip Gutierrez had summarily dismissed the case in August 2011, finding the fair use defense applied because the “different visual elements … added, including graffiti, a brick backdrop, and (especially) the large red cross over the image, considered in connection with the music and lyrics of ‘East Jesus Nowhere,’ add something new, with a further purpose or different character than [Seltzer’s] original work.

The Ninth Circuit largely agreed with Judge Gutierrez. “First, the purpose and character of the use was transformative because the video altered the expressive content or message of the illustration, and the use was not overly commercial,” wrote the court of appeals. “Second, the illustration was a creative work, but its nature included its status as a widely disseminated work of street art.” The panel also noted that the video backdrop did not affect the value of Seltzer’s own illustration.

However, the court of appeals did vacate the district court’s award of attorneys’ fees to the defendants under the Copyright Act. The Ninth Circuit held that despite the defendants’ success on the fair use defense, Seltzer did not act objectively unreasonably in bringing his suit.

The opinion in Seltzer v. Green Day Inc., No. 11-56573, is available through the preceding link.

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