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The question presented in a case where a defendant makes a winning fair use defense is whether the successful defense of the action furthered the purposes of the Copyright Act. It is important to recall that the Supreme Court rejected the so-called British Rule where the loser pays; rather, attorneys fees are left up to the discretion of the district court. 17 U.S.C.S. § 505. Courts deciding whether to award attorneys fees can look to five non-exclusive factors: (1) the degree of success obtained; (2) frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party's factual and legal arguments; and (5) the need, in particular circumstances, to advance considerations of compensation and deterrence.
Defendant Roger Staub created a video backdrop for each of the thirty-two songs on Green Day's set list. Before making these backdrops, Staub repeatedly listened to 21st Century Breakdown and studied the album art, which uses graffiti and street art as significant visual elements. One of the songs for which Staub created a backdrop was the eighth song on the album, entitled "East Jesus Nowhere." What Staub ultimately created for this song is the allegedly-infringing work at the heart of this case, an approximately four-minute-long video. The video depicts a brick alleyway covered in graffiti. As "East Jesus Nowhere" is performed, several days pass at an accelerated pace and graffiti artists come and go, adding new art, posters, and tags to the brick alleyway. The graffiti includes at least three images of Jesus Christ, which are defaced over the course of the video. Throughout the video, the center of the frame is dominated by an unchanging, but modified, Scream Icon. Staub used the photograph he had taken at Sunset and Gardner, 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 color and added black streaks running down the right side of the face. Staub's image further differs from Scream Icon because Staub's original photograph was of a weathered, slightly defaced, and torn poster. Scream Icon is nonetheless clearly identifiable in the middle of the screen throughout the video. Staub's video backdrop was played behind Green Day during the performance of "East Jesus Nowhere" at approximately seventy concerts, and also during Green Day's performance of the song at the MTV Video Music Awards. At some point, Seltzer became aware that Green Day was using his art and on September 24, 2009 he wrote the band an e-mail alerting them to their unauthorized use stating that he would like to "work out a resolution to this issue." Apparently no resolution was possible, because on November 19, 2009, Seltzer registered a copyright in Scream Icon, and his counsel sent Green Day a cease-and-desist letter. Green Day subsequently stopped using the video backdrop. In March 2010, Seltzer filed the instant action. His First Amended Complaint alleges direct and contributory copyright infringement, violations of the Lanham Act, and various state law claims. After discovery, defendants (collectively, "Green Day") moved for summary judgment. They primarily argued that Staub's video backdrop was fair use under 17 U.S.C. § 107. The district court agreed and granted summary judgment on all claims. Green Day then moved for attorneys fees under 17 U.S.C. § 505. The district court found that Seltzer's claims had been objectively unreasonable and granted the motion in full, awarding the defendants a total of $201,012.50. Seltzer timely appeals both the grant of summary judgment and the grant of attorney's fees.
Was Green Day’s unauthorized use of Seltzer’s illustration in the video backdrop of its stage show a "fair use" under copyright law?
The court held that Seltzer’s copyright infringement claim under the Copyright Act failed because the rock band's use of the illustration was a "fair use" under 17 U.S.C.S. § 107 since the use of the illustration was transformative and not overly commercial, and the rock band presented evidence that its video backdrop did not perform the same "market function" as the original. Seltzer’s Lanham Act claim failed because he did not explain how advertisements containing the illustration were distributed, who might have seen them, or any other facts which might be necessary to evaluate whether the illustration was deserving of trademark protection. Regarding attorneys fees under 17 U.S.C.S. § 505, it was clear error to find that Seltzer acted objectively unreasonably.