“Green Day is no “American Idiot”: Prevails in Copyright Infringement Suit”
On August 7, 2013, the U.S. Court of Appeals for the Ninth Circuit (“Court”) affirmed a U.S. District Court for the Central District of California (“District Court”) ruling that granted summary judgment to the popular rock band Green Day, citing that the band’s use of a street artist’s drawing as a part of a backdrop video in a 2009 concert tour did not constitute copyright infringement.
In preparation for a 2009 tour to support its album 21st Century Breakdown, Green Day commissioned the creation of video backdrops for each of the songs on the concert’s set-list. For one of their songs—“East Jesus Nowhere”—a modified version of the famed Scream Icon drawing was used in the video backdrop. Created by artist and illustrator Dereck Seltzer in 2003, Scream Icon depicts “a screaming, contorted fact” and has become popular in the form of posters affixed to walls in public places throughout Los Angeles and other cities.
Seltzer sent Green Day a cease-and-desist letter and subsequently, sued the band, alleging copyright and trademark infringement, as well as other claims under California state law. The District Court granted summary judgment in favor of Green Day and the Court affirmed. The Court concluded that Green Day’s use of the image was fair use under copyright law and applied a four factor test in making its determination as set forth in the Copyright Act, 17, U.S.C. § 107.
With respect to the first factor, the purpose and character of use of the copied work, the Court cited that Green Day’s use of the Scream Icon drawing was merely one element of many images appearing in an essentially street-art music video about religion. Since Green Day’s intended message appeared significantly different from the non-religious message intended by Seltzer’s original drawing about youth, skateboard and insider/outsider culture, Green Day’s use was transformative. Furthermore, the Court found that any commercial use by Green Day was slight and very incidental in this instance. All of the foregoing, weighed in favor of fair use.
With respect to the second factor, the nature of the copied work, although the Court acknowledged that the Scream Icon drawing is a highly creative work that should be afforded strong protection under copyright law, the Court opined that the Scream Icon drawing had been “widely disseminated” well before Green Day used it in its video backdrop. The court also noted that Seltzer had been given ample opportunity to enforce third party use of his drawing since 2003 and failed to do so. With respect to the third factor, the amount of the original work used, the Court essentially placed no value on this factor, since it was not possible to use the Scream Icon only in part.
With respect to the final factor, the effect of the allegedly infringing use on the potential market for the copied work, the court found that Green Day’s use of the image did not adversely affect the market for the original Scream Icon drawing. Green Day had only used the image for one several minute song in a 3 hour concert and not used the image in any merchandise or promotional materials. The Court also dismissed Seltzer’s claim that even though Green Day’s use did not affect the market value of the work, it personally “tarnished” the value of the work for him.
This case effectively demonstrates how close fair use considerations can be between parties and how slight differences in the context of use, enforcement, etc., can tip the scales in favor of one party over another. In this instance, the Court left Seltzer with nothing but “A Boulevard of Broken Dreams.”
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