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A federal judge has dismissed a lawsuit by an artist who claimed that the band Green Day used an unauthorized reproduction of his art as a concert backdrop. The judge found that the band’s use of the copyrighted work was “transformative” in a decision that continues to show just how tough it is to pin down “fair use” rules, except on a case-by-case basis.
L.A.-based artist Derek Seltzer sued Green Day, Warner Bros. Records and others for misappropriating his copyrighted work, Scream Icon, which the plaintiff had put on posters and stickers and displayed on public spaces around Los Angeles.
In 2009, Green Day hired photographer Richard Staub to create video backdrops for its concert tour supporting the album, 21st Century Breakdown. Inspired by the song “East Jesus Nowhere,” which according to a deposition by singer Billie Joe Armstrong is about the hypocrisy of religions, Staub took a photo of the graffiti-covered poster of Scream Icon, then altered the color and contrast, added a brick background, and superimposed a red spray-painted cross over the modified image.
Green Day challenged Seltzer’s claims in a motion for summary judgment, saying that its use of the Scream Icon was fair use.
On Thursday, California federal judge Philip Gutierrez agreed with the defendants, finding that “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.”
Interestingly, early last month, we covered another copyright misappropriation case pitting artist v. artist.
In that lawsuit, Thierry Guetta (aka “Mr. Brainwash”) was alleged to have taken a copyrighted photograph of Run DMC, altered the photo and projected it onto a large piece of wood, painting the image and gluing 1,000 pieces of phonograph records onto the wood. A judge there found that Guetta hadn’t done enough to create a transformative fair use piece of work, thus infringing the photographer’s copyrighted decisions about light and shadow, image clarity, depth of field, spatial relationships and graininess.
But Seltzer isn’t as lucky as the plaintiff who pursued Guetta.
Judge Gutierrez points to Seltzer’s deposition, where he testified that Green Day’s use of Scream Icon in the video backdrop for East Jesus Nowhere:
“[T]ainted the original message of the image and […] made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with….. I make an image, I produce it, I tailor it to my needs, the concept, the content, and then someone comes along, defaces the image, puts a red cross on it. I mean, maliciously devalues the original intent and then shows it to thousands upon thousands of people.”
That outrage sounds good, and Seltzer may have felt relieved to get his frustration off his chest, but unfortunately for him, he basically admits that the defendants added new meaning to his work — which fundamentally is the definition of “transformative.”
The other big reason why Green Day was able to successfully claim fair use in this case is that the Seltzer had trouble showing that the band’s use of the image had an adverse impact on the potential market for his image. According to Judge Gutierrez, “Given the fundamentally different purposes of the two works, Staub’s use of a modified version of the Scream Icon image in the East Jesus Nowhere video backdrop cannot reasonably be deemed a market substitute for Plaintiff’s original Scream Icon image.”
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