Transformative use victory for Green Day - and a poll asking what YOU think of fair use

Seltzer's Scream Icon

Is unauthorised use of an artist’s work in the video backdrop of a rock band's stage show fair use under US copyright law?

This was the very question that the US Court of Appeals for the 9th Circuit had to address in a lawsuit filed by artist Derek Seltzer against American Idiot's rock group Green Day. 

In his Opinion published yesterday Circuit Judge O'Scannlain responded in the affirmative (press coverage here).

What was the background to this case? In 2003 Seltzer created Scream Icon, a drawing of a screaming, contorted face. He made copies of his work, including large posters and small prints, which became very popular (many posters were plastered on walls as street art in Los Angeles and elsewhere). Although the artist moved on to other projects, he sometimes used Scream Icon to identify himself and his work’s presence and even licensed its use for a music video.

In 2008 photographer Roger Staub photographed a brick wall in Los Angeles which was covered in graffiti and posters, including a copy of Scream Icon. 

In 2009 Green Day released their eight studio album 21st Century Breakdown. In anticipation of the 2009-10 promotional tour, Staub created a video backdrop for each of the thirty-two songs on Green Day’s set list, including East Jesus Nowhere. According to Staub, the theme of the song was “the hypocrisy of some religious people who preach one thing but act otherwise".

What Staub ultimately created for this song was a four-minute-long video which depicts a brick alleyway covered in graffiti. Throughout the video, the centre of the frame is dominated by an unchanging, but modified, Scream Icon. Staub used the photograph he had taken in Los Angeles, cut out the image of Scream Icon and modified it by adding a large red spray-painted cross over the middle of the screaming face. He also changed the contrast and colour and added black streaks running down the right side of the face. 

Billy Joe sings in front of
the transformed Scream Icon

In 2009 Seltzer became aware that Green Day were using his artwork. Following copyright registration of Scream Icon and a cease-and-desist letter, Green Day stopped using the video backdrop. Still unhappy, Seltzer sued Green Day for copyright infringement, but the district court granted summary judgment in favour of the defendants. Even more unhappy, Seltzer appealed the decision.

Judge O'Scannlain reviewed relevant case law on fair use and considered all the four fair use factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion 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 copyrighted work.

The judge found that they all weighted in favour of the defendants. In particular, within the first factor, he considered whether the defendants' use of Scream Face could be considered transformative. Citing the recent decision of the 2nd Circuit in Cariou v Prince (on which see here and here), the judge recalled that, although transformation is a key factor in fair use, whether a work is transformative is often a highly contentious topic.

An instance of
transformative use,
but also a call to vote!

This said, Green Day’s use of Scream Icon was found transformative:

"Green Day used the original as “raw material” in the construction of the four-minute video backdrop. It is not simply a quotation or a republication; although Scream Icon is prominent, it remains only a component of what is essentially a street-art focused music video about religion and especially about Christianity (images of Jesus Christ appear - and are defaced - several times during the course of the video) [according to the judge, the original artwork "clearly says nothing about religion"]."

This Kat does not find the ruling particularly surprising. She wonders however whether a different outcome would have been achieved in different legal traditions. This question is not utterly irrelevant, not just because systems of copyright exceptions and limitations are currently being reviewed a bit everywhere (UK: here and here, EU: here, even the US: here), but there are countries (eg Australia) where recent reform proposals have included adopting an open-ended US-style fair use clause. It is for this reason that the IPKat and The 1709 Blog have joined forces and decided to run a sidebar poll (you can find it at the top of the 1709 Blog's side bar), seeking YOUR opinion as to the following: 

Do you think that US fair use really makes a difference in terms of user freedoms?

You have time until Tuesday 20 August to cast your vote and make your voice heard on such an important copyright policy issue.