When is it Ok to Use Another’s Artwork?

Posted by on Aug 13, 2013

Today we take a look at the case of Seltzer v. Green Day and examine the circumstances under which one may use the creative works of another person.  The major issue in the case was fair use of copyrighted material.  The topic ties in nicely with last week’s post, which dealt with Fair Use in the trademark realm.

Background of the Case

Plaintiff Seltzer is an artist, illustrator and photographer.  Defendant Green Day is an iconic rock and roll band.  In 2003 the plaintiff created a drawing of a screaming, twisted face which he entitled “Scream Icon.”  He licensed its use for inclusion in a music video and has used the drawing to identify his own work by placing it on advertisements for art gallery appearances.  He has also sold and given away posters of the drawing, many of which have been posted on walls and in alleys in Los Angeles as a sort of contemporary street art.

Roger Staub was a photographer and set-designer for Green Day.  In 2008 Staub photographed a brick wall on Sunset Boulevard, in LA.  The wall featured, among other things, a poster of Scream Icon.  One thing led to another, and eventually, Staub used his Sunset Boulevard photographs to design a backdrop for one of Green Day’s music videos for the new song “East Jesus Nowhere.”  The plaintiff’s Scream Icon drawing plays a prominent, very visible role in the backdrop.  Staub modified the drawing with a bright red cross to comport with the religious themes of the song, but it is still very recognizable.

The plaintiff found out about this use of his drawing, and filed a lawsuit for copyright infringement.  Green Day’s main defense was Fair Use of the Scream Icon drawing.

Analysis – Fair Use

In California and the 9th Circuit, fair use is a valid defense to allegations of copyright infringement.  The purpose of the doctrine is to avoid stifling or unduly burdening creativity.  Without a fair use doctrine, theoretically any creative work that drew even the slightest inspiration from, or had similar elements to, existing works might be guilty of copyright infringement.

The court summarized the 4-factor test for fair use.

1) Purpose of the use.  Is it for-profit and commercial use, or is it educational and/or non-profit?  The use of the material for money tends to skew this factor in the direction of infringement.

2) The nature of the copyrighted work.

3) The amount of the work used – was it a substantial amount?  The more of the work used, the more likely it is to be infringement.

4)  The effect of the use on the potential market or value of the original work.  Copying a work and selling it in direct competition is “unfair” use and not protected.

Factor 1 went in Green Day’s favor.  The court viewed the use as “transformative” – the work was altered or transformed for a new creative purpose.  All though Green Day’s use of the backdrop in concerts was commercial, the Scream Icon was never directly used as a marketing or advertising image.  Thus, the degree to which a work is modified, including the legal question of “transformation” is highly significant.

Factor 2 analysis assessed two things.  First it characterized Scream Icon as creative work, deserving strong protection.  However, its widespread publication was a factor weighing in favor of fair use.  As a whole, this factor slightly favored Seltzer.

Factor 3 did not weigh against Green Day.  Although they used all of the work, such use was deemed necessary to achieve the transformation described in Factor 1.

Factor 4 was interesting.  The artist stated that he did not feel that the value of Scream Icon had diminished – rather he simply didn’t like Green Day’s use of it.  The court weighed the market for Seltzer’s art, and concluded that Green Day had not affected it, thus this factor favored Green Day.

In sum, the 4-factor test, as applied by the court, favored Green Day, who were found to not be in violation of Seltzer’s copyright.  Understanding how these factors were applied is key to understanding how a trial over fair use is likely to proceed.