Fees Tossed in Copyright Fight Green Day Won

(CN) - Green Day did not violate copyright law when it used an artist's drawing of a screaming face in a video backdrop, the 9th Circuit ruled Wednesday.

Los Angeles-based artist and illustrator Derek Seltzer sued the rock band in 2010, alleging it had used his drawing "Scream Icon" during shows in support of the "21st Century Breakdown" album without permission.

Seltzer created the drawing of a screaming and contorted face in 2003 and printed it on posters and stickers that he displayed in public spaces throughout Los Angeles. Green Day set designer Richard Staub photographed a poster of "Scream Icon" on a wall on Sunset Boulevard in 2008. He later incorporated the image into a four-minute video backdrop for Green Day's song "East Jesus Nowhere."

"The video depicts a brick alleyway covered in graffiti," the ruling states. "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."

While the image remains in the center of the frame throughout the video, it has been altered by a red spray-painted cross, according to the ruling.

Finding the image to have been sufficiently transformed to become fair use, U.S. District Judge Philip Gutierrez granted the band summary judgment in 2011 on all of the artist's claims. The District Court also awarded the band some $200,000 in attorneys' fees, calling Seltzer's case "objectively unreasonably."

At oral argument before the 9th Circuit in February, Seltzer's attorney, William Canby, of Rosenfeld, Meyer & Susman, argued that Green Day had not altered the image enough to duck his client's claims.

"A transformative work in the fair-use context is a use in which the changes made to the copyrighted work result in a new use, which first of all needs a justification for using that particular copyright work, and secondly results in a use that doesn't supplant or supersede the copyright work in a reasonable potential market or actual market," Canby said.

A three-judge panel of the federal appeals court affirmed summary judgment Wednesday, finding that the band had put the image to just such a "new use" by turning it into a symbol for religious hypocrisy

"Regardless of the meaning of the original, it clearly says nothing about religion," Judge Diarmuid O'Scannlain wrote for the panel. "With the spray-painted cross, in the context of a song about the hypocrisy of religion, surrounded by religious iconography, Staub's video backdrop using Scream Icon conveys 'new information, new aesthetics, new insights and understandings' that are plainly distinct from those of the original piece."

The panel noted that, in his deposition, Seltzer had "repeatedly testified that the value of his work was unchanged, but that he subjectively did not care for Green Day's use of his art. He admitted that no one had ever told him that he would not buy his work as a result of Green Day's use; instead, he claimed that Scream Icon was 'tarnished' for him personally, but he did not view the piece as having lost any value."

Judge Gutierrez had gotten it wrong, however, in finding that Seltzer's claims were a stretch in the first place. Calling the case "close and difficult," the panel vacated the award of attorneys' fees to Green Day.

"We concluded that Seltzer's work was transformed by Green Day's use," O'Scannlain wrote. "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.'"

Seltzer's lawyer said he and the artist "are considering our options."

"We are pleased that the Ninth Circuit vacated the attorneys' fees award, calling the matter 'a close and difficult case,'" Canby said in an email. "The decision regarding fair use we of course are less happy about, but we respect it. Recently a number of courts have found it to be a fair use when an artist's work is appropriated and reused, as long as there is some apparent change in expression or message. Appropriation artists benefit by this but not very many other creative artists. The result, if this trend remains the law, may be a greater change in copyright law than was envisioned when the transformative use analysis was first launched into our copyright law."

Green Day's Santa Monica-based lawyer, Peter Anderson, did not respond to a request for comment.

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