Seltzer v. Green Day, Inc.

Seltzer v. Green Day, Inc.

Opinion

 [***1804]   [*1173]  SUMMARY¹

Copyright / Fair Use

The panel affirmed the district court's summary judgment in favor of the defendants but vacated  [**2] the district court's award of attorneys' fees in an artist's action alleging violations of the Copyright Act and the Lanham Act in a rock band's unauthorized use of an illustration in the video backdrop of its stage show.

The panel held that the video backdrop was a fair use under the Copyright Act. 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. Second, the illustration was a creative work, but its nature included its status as a widely disseminated work of street art. Third, the defendants copied most of the illustration, but it was not meaningfully divisible. Fourth, the video backdrop did not affect the value of the illustration.

The panel affirmed the grant of summary judgment on Lanham Act claims on the basis that the artist failed to establish any trademark rights.

Vacating the district court's award of attorneys' fees to the defendants under the Copyright Act, the panel held that, despite the defendants' success on the fair use defense, the plaintiff did not act objectively unreasonably.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether a  [**3] rock band's unauthorized use of an artist's illustration in the video backdrop of its stage show was a "fair use" under copyright law.

Plaintiff Derek Seltzer is an artist and illustrator. In 2003, he created Scream Icon, a drawing of a screaming, contorted face. Seltzer made copies of Scream Icon, including large posters and smaller prints with adhesive backs, which he has sold and given away. See Appendix A. Many  [*1174]  Scream Icon posters have been plastered on walls as street art in Los Angeles and elsewhere. Since then, Seltzer has moved on to other projects, but at times he has used Scream Icon to identify himself and his work's presence by placing it on advertisements for his gallery appearances, and at some point he licensed it for use in a music video.

Defendant Roger Staub is a photographer and professional set-lighting and video designer. In 2008, Staub photographed a brick wall at the corner of Sunset Boulevard and Gardner Avenue in Los Angeles which was covered in graffiti and posters—including a weathered and torn copy of Scream Icon. See Appendix B. Staub found it "interesting" and saved this picture in his personal library.

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