Recently, rock band Green Day won a “close and difficult” victory in the US Court of Appeals for the Ninth Circuit when the Court affirmed a lower court’s decision that the band’s use of artist Dereck Seltzer’s “Scream Icon” image constituted “fair use” under copyright law but reversed a $200,000 award in the band’s favor.
It all started when Green Day set designer and photographer, Richard Staub, photographed the piece “Scream Icon” as displayed on a Los Angeles graffiti wall. Staub then used that photograph, in a modified version, as part of a video backdrop during the song “East Jesus Nowhere” on Green Day’s 2009 tour. Staub made a number of changes to the image, including altering its color and placing a giant red cross over it. You can see the set piece to the right.
Unhappy with Green Day’s use, in March 2010, Seltzer sued Green Day, Staub and others for copyright infringement. However, the District Court for the Central District of California ruled in favor of Green Day on summary judgment, finding that Green Day’s use constituted “fair use,” an exception to copyright infringement, and thus, did not violate Seltzer’s copyright.
The Ninth Circuit agreed basing its opinion mainly on the fact that Green Day did in fact “transform” the original use of “Scream Icon” by slightly yet sufficiently altering its original message. The Court noted that the changes made to the image in combination with Green Day’s song “East Jesus Nowhere” conveyed an entirely different message of religion, specifically religious hypocrisy. Other factors leading to the Court’s finding of “fair use” were: (1) Green Day’s use was only “incidentally commercial” in the sense that the band never used “Scream Icon” to directly market itself; and (2) Seltzer admitted that Green Day’s use had no impact on the value or market for “Scream Icon.”
While Seltzer took a major hit, all was not lost on the artist. The Court decided that since the case was “close and difficult” they would vacate the district court’s award of attorneys’ fees to Green Day, which would have amounted to a hefty $200,000. So Green Day is not as green anymore.