Good Day for Green Day: Judge Rules in Favor of Fair Use


n a lawsuit against the band Green Day, by Derek Seltzer (an L.A. Based Artist), the U.S. District Court Judge ruled in favor of Green Day in a motion for summary judgment on the basis of their fair use defense. Seltzer accused Green Day of violating his intellectual property rights through their unauthorized use of, and by altering, Seltzer’s notorious work, “Scream Icon”. Green Day’s use of the work appeared in a video backdrop during live performances of their song East Jesus Nowhere, throughout their 2009 tour.

Green Day undisputedly used the image and their set designer, Richard Straub (also a defendant), admitted to altering the image by adding a brick wall with a large red cross sprayed over it. Straub explained he did this so that, in concert with the song, it may convey a message about the “relationship between organized religion — and pain and suffering”.

At the heart of Seltzer’s argument, he claimed that Green Day’s alteration and unauthorized use of his work not only changed, but defaced and devalued both his original work and the meaning his original work was intended to convey.

Green Day however claimed their use of the image was transformative because their use “added something new, with a further purpose or different character than the original work.” Based on the plaintiff admitting Green Day’s use of the image changed the meaning of work, the judge ruled in favor of Green Day’s transformative use and thereby deemed it a valid fair use.

To sustain an argument in favor of fair use, generally the courts consider four basic elements: (1) The purpose and character of the use, (2) The nature of the copyrighted work, (3) The amount and substantiality of the use, and (4) The effect of the use on the market for the original work.

In this case, the judge claimed that the use was transformative and its appearance beforehand on the Internet made the second factor “fall slightly in favor of fair use”. The judge also ruled that although the defendant used the entire work, it was merely part of a composite image in the background which included many other images and graphics. Furthermore, the judge ruled that Plaintiff failed to show the connection between Defendant’s use of the work and a negative impact on Plaintiff’s ability to license the work.

Whether appropriation art is fair use or foul, it is controversial, and courts have never consistently ruled in favor of the appropriation artist. Jeffrey Koons is an example of an artist who lost his fair use case involving a sculpture based on a photograph of a couple holding puppies, and won a fair use case based on a photograph used in a collage painting. Fair use is decided on a case by case basis and this case seemed easy for the courts to decide as the plaintiff all by conceded that the work was transformative. The controversy over appropriation art will continue. The tension remains between the first artist’s exclusive right to authorize a derivative work, and the appropriation artist’s view that other works are part of their artistic toolbox, just as the paint and the brush.

Either way, the fair use defense leaves much to be debated regardless of which side the court rules.

(Click here for Civil Minutes, Derek Seltzer v. Green Day et al).

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September 18, 2011