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Dereck Seltzer v. Green Day, Inc. et al

By Barry Werbin

The Ninth Circuit issued its significant opinion on Aug. 7th in Dereck Seltzer v. Green Day, Inc. et al., affirming on fair use grounds the District Court's grant of summary judgment to the rock band Green Day and its concert tour video producer and photographer, who had created a four-minute video that included an image of the plaintiff's copyright-protected "Scream-Icon" poster affixed to a wall on Sunset Boulevard. The still image of the poster was taken by the photographer and set designer, Roger Staub, initially for his personal use, who also was a co-defendant and made the video. The video added graphic elements to the plaintiff's work, and was played as a backdrop for one of Green Day's songs ("East Jesus Nowhere") on its 2009-10 national concert tour, including at some 70 concerts and the MTV Video Music Awards.

The Court recognized this was a "close and difficult case," but found that this was a fair use and was [no surprise] "transformative." Yet the Court to its credit delves into the propriety and scope of "transformative use," including as it has been applied by other courts and discussed in various respected law review articles and commentaries.

From the case syllabus: "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 court's description of the video and how the image was "modified" is important and is analogous to Cariou v. Prince (which is referenced in the opinion):

"The video depicts a brick alley way 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."

With respect to the first Section 107 factor, the Court cited to the Supreme Court's statement in the Campbell case (1994) that the "central purpose" of this factor is to see "whether and to what extent the new work is transformative." However, the Court noted (citing to the dissent in Cariou) that "whether a work is transformative is a often highly contentious topic." The Court described the legal body of transformative use cases and commentaries as "treacherous waters." In particular, it focuses on the creation of the doctrine in Campbell based on Judge Leval's 1990 Harvard Law Review article, and found that under that analysis, the use of the poster here was transformative because Scream Icon is only one component of "what is essentially a street-art focused music video about religion and especially about Christianity." While the "message and meaning" of Scream Icon "is debatable," it "clearly says nothing about religion."

The Court also noted that "Although the law in this area is splintered ... our conclusion on transformation is generally in line with other appellate authority on transformative use. In the typical "non-transformative" case, the use is one which makes no alteration to the expressive content or message of the original work.... In contrast, an allegedly infringing work is typically viewed as transformative as long as new expressive content or message is apparent. This is so even where--as here--the allegedly infringing work makes few physical changes to the original or fails to comment on the original." [Citing Cariou v. Prince]

Last, under the first factor, the Court found that "Green Day's use of Scream Icon was only incidentally commercial; the band never used it to market the concert, CDs, or merchandise. Under these circumstances, the first fair use factor weighs in Green Day's favor."

With respect to the second factor, while "Scream Icon is a creative work, meriting strong protection," at the same time the Court considered as a mitigating factor that Scream Icon also had been widely published initially by Seltzer himself as street art, including on the Internet, which "weighs only slightly in Seltzer's favor."

On the third factor, because it is a single image, "Scream Icon is not meaningfully divisible..." Thus, "this court has acknowledged that this factor will not weigh against an alleged infringer, even when he copies the whole work, if he takes no more than is necessary for his intended use."

Finally, on the fourth potential market harm factor, the Court noted that "Where the allegedly infringing use does not substitute for the original and serves a 'different market function,' such factor weighs in favor of fair use." This factor also weighed in favor of fair use because: "The original, created six years before Green Day's use, was primarily intended as street art. Green Day's allegedly infringing use, on the other hand, was never placed on merchandise, albums, or promotional material and was used for only one song in the middle of a three hour touring show. In this context, there is no reasonable argument that conduct of the sort engaged in by Green Day is a substitute for the primary market for Seltzer's art."

The Court did reverse the District Court's award of legal fees against Seltzer, finding that his position not "objectively unreasonable" especially in this case: "This was a close and difficult case. We concluded that Seltzer's work was transformed by Green Day's use. But that transformation was far from obvious given Green Day's only slight alterations to the original. Furthermore, of the remaining three factors, one was in Seltzer's favor, one was in Green Day's favor, and one was neutral. There is simply no reason to believe that Seltzer "should have known from the outset that [his] chances of success in this case were slim to none."

A copy of the decision is attached.Green Day decision.pdf

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