PASAENDA, Calif. (CN) - A 9th Circuit judge brought an inflatable doll of the agonized figure from the painting "The Scream" into court to make a point about fair use.
He and two colleagues are deciding whether to revive a street artist's copyright claims against the punk rock band Green Day over the use of his work in their concert tour.
Like the 1893 Edvard Munch painting, Dereck Seltzer's work, "Scream Icon," also depicts an anguished face, but Seltzer's figure has fangs. The artist printed posters and stickers of the image after he created it in 2003, then posted these reproductions to buildings, walls, street signs and other public spaces around Los Angeles.
In 2008, Green Day set designer Richard Staub photographed a poster of "Scream Icon" on wall at Sunset Boulevard and Gardner Avenue in Los Angeles in 2008.
He later used the image as part of a four-minute video backdrop for Green Day's live performance of the single "East Jesus Nowhere" from the band's eighth album, "21st Century Breakdown."
The video featured a composite image of the "Scream Icon," superimposed with a red spray-painted cross.
Seltzer sued Staub, Green Day, several other entities, and the band's three members, frontman Billie Joe Armstrong, drummer Tre Cool, and bassist Mike Dirnt, in the Central District of California.
U.S. District Judge Philip Gutierrez granted the defendants summary judgment on the copyright complaint in 2011, finding Staub's work "transformative" under the fair use exception of copyright law.
Urging the 9th Circuit to affirm that decision at a hearing Tuesday, Green Day's attorney, Peter Anderson of Santa Monica, argued that the backdrop was transformative because it had not been used in its "original form."
Rather, the band had used a "weathered" reproduction Staub found, Anderson said.
He noted that Staub had been inspired to "create a video backdrop whose theme was street art and dealt with this issue of religious hypocrisy and violence."
Seltzer even testified that he was against commercialism in art, and that he was "horrified" that a cross had been added to his work, Anderson added.
Judge Richard Clifton interrupted that "religion doesn't change anything."
"Suppose you describe it as anguish," Clifton said. "The fact that you project the anguish into the context of religion hasn't transformed the original work."
To make his point, Clifton held up an inflatable doll resembling the agonized figure from "The Scream," borrowed, the judge said, from someone on the sixth floor of the courthouse.
"Assume for a moment that this is covered by copyright," Clifton said. "Would you transform it if you used it in this fashion, and put a cross over it?"
Anderson replied that "the meaning would be different."
Asked whether that would constitute fair use, the lawyer added that "the evidence speaks for itself."
He noted Seltzer's own testimony that the addition of the cross "changed the meaning of his work."
"That was important to the court below when it ruled," Anderson said.
Green Day's backdrop could not be considered in isolation because of other images included in the video, the lawyer added, likening it to a "video collage."
Anderson took the 15 minutes of allotted time ceded to him by counsel for Staub and Performance Environment Design. They are represented respectively by Bruce Isaacs with Wyman and Issacs of Los Angeles, and Lee Brenner of Santa Monica.
Seltzer's attorney, William Canby of Rosenfeld, Meyer & Susman, countered that Green Day failed to change the image significantly enough to meet the transformative use standard.
Judge Stephen Trott interjected that "transformative is a pretty slippery concept."
Canby focused on precedent mentioned in the summary judgment order, Campbell vs. Acuff-Rose Music Inc., a 1994 decision in which the U.S. Supreme Court found a movie scene used photographs to create a "distinct visual aesthetic."
"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.
Judge Diarmuid O'Scannlain asked Canby to elaborate on how Green Day's use of the image would devalue Seltzer's work.
"What's the negative commercial impact on this work as you see it?" he asked.
Canby said Green Day had "diminished" Seltzer's ability to license the work.
As an up-and-coming artist, Seltzer faces a hurdle in deciding when and how to enter the market with the piece, he said.
Green Day did not have to incorporate "Scream Icon" into the backdrop in the first place, and could even have designed its own image, Canby added.
He also said that a work's status as street art should not impact the court's decision under copyright law.