California Copyright Litigation: Band Green Day Saved by Fair Use Doctrine

A California federal judge recently dismissed a California copyright lawsuit by an artist who claimed that the band Green Day used an unauthorized reproduction of his art as a concert video backdrop. The judge found that the band’s use of the copyrighted work was “transformative” under the fair use doctrine.

“Fair use” is the copying of copyrighted material for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work and can generally be done without the author’s permission.

Artist Derek Seltzer sued Green Day and Warner Bros. Records for misappropriating his copyrighted work, Scream Icon, which the plaintiff had put on posters and stickers and displayed on public spaces around Los Angeles. Green Day challenged Seltzer’s claims in a motion for summary judgment, saying that its use of the Scream Icon was fair use.
The image at issue was created by photographer Richard Staub, who was hired by Green Day to create video backdrops for its 21st Century Breakdown concert tour. As part of the backdrops for the song East Jesus Nowhere, Staub took a photo of a graffiti-covered poster of Scream Icon, then altered the color and contrast, added a brick background, and superimposed a red spray-painted cross over the modified image. The altered image displayed during a single song in Green Day’s thirty-two-song set.

California Federal Judge Philip Gutierrez granted Green Day’s motion for summary judgment finding that the band’s use of the copyrighted image was “transformative” enough to qualify as fair use. The judge reasoned that the use was transformative because the new elements, including graffiti, brick backdrop, and a large red cross over the images, when considered in connection with the music and lyrics of the Green Day song they accompanied, “add[ed] something new, with a further purpose of different character” as compared to the plaintiff’s original work.

The court also noted that Seltzer had difficulty demonstrating that the band’s use of the image had an adverse impact on the potential market for his image. According to Judge Gutierrez, “Given the fundamentally different purposes of the two works, Staub’s use of a modified version of the Scream Icon image in the East Jesus Nowhere video backdrop cannot reasonably be deemed a market substitute for Plaintiff’s original Scream Icon image.”

As this case highlights, there are no bright-line rules for what constitutes fair use, particularly whether it is done for a transformative purpose. Rather, the determination is made on a case-by-case basis.

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