(CN) – A video backdrop used in Green Day’s 2009-10 concert tour transcended a self-described “up-and-coming” graffiti artist’s work and did not violate his intellectual property rights, a federal judge ruled.
Set designer Richard Staub used artist Derek Seltzer’s 2003 “Scream Icon” in a video backdrop for Green Day’s song “East Jesus Nowhere,” finding the image of a screaming human face represented the song’s theme. Staub used only a portion of a photograph he took of Seltzer’s work, changed the color, added a brick background and superimposed a red spray-painted cross over the image. Seltzer sued the band and Staub in March 2010, claiming they infringed on his copyrighted art, but U.S. District Judge Philip Gutierrez found Staub’s recreation of the piece to be fair use.
“In this case, the court agrees with defendants that the video backdrop created for ‘East
Jesus Nowhere’ is transformative,” Gutierrez wrote, relying on Campbell v. Acuff-Rose Music, a 1994 case that found a movie scene use photographs to create a “distinct visual aesthetic.”
“The different visual elements Staub added, including graffiti, a brick backdrop, and (especially) the large red cross over the image, considered in connection with the music and lyrics of ‘East Jesus Nowhere,’ ‘add[ ] something new, with a further purpose or different character’ than plaintiff’s original work,” Gutierrez wrote. “Plaintiff, in contrast, stated that he created ‘Scream Icon’ to address ‘themes of youth culture, skateboard culture, [and] insider/outsider culture.'”
“Moreover, in complaining about how defendants used ‘Scream Icon,’ plaintiff effectively concedes that defendants’ use was transformative,” Gutierrez added.
He also found Green Day’s use of the image did not harm the market for Seltzer’s art and that the band did not profit from it. “Although plaintiff is correct that defendants profited from the concert tour, the commercial significance of defendants’ use of ‘Scream Icon’ is minimal, if not negligible,” the Thursday ruling states.