Green Day’s transformation of ‘Scream’ image was fair use

September 2013



US punk rock band Green Day did not infringe copyright when it used an artist’s drawing of a screaming face in a video backdrop, the 9th Circuit appeals court has ruled, saying that the band transformed the work of Los Angeles-based artist and illustrator Derek Seltzer. Seltzer launched his action in 2010, saying the band had used his drawing “Scream Icon” without permission. A poster lf the image had been photographed by Green Day’s set designer Richard Staub on a wall on Sunset Boulevard in 2008 and  later incorporated the image into a four-minute video backdrop for Green Day’s song “East Jesus Nowhere”, a song about religious hypocrisy.  “The video depicts a brick alleyway covered in graffiti,” the ruling says: “As ‘East Jesus Nowhere’ is performed, several days pass at an accelerated pace and graffiti artists come and go, adding new art, posters, and tags to the brick alleyway. The graffiti includes at least three images of Jesus Christ, which are defaced over the course of the video.” While the image remains in the center of the frame throughout the video, it has been altered by a red spray-painted cross, and the court agreed with U.S. District Judge Philip Gutierrez that the image had been sufficiently transformed to become fair use.  Judge Gutierrez granted summary judgment for the band and legal fees of $200,000. In the appellate court, and noting the use of his work had in no way diminished its value. Judge Diarmuid O’Scannlain said “Regardless of the meaning of the original, it clearly says nothing about religion …. With the spray-painted cross, in the context of a song about the hypocrisy of religion, surrounded by religious iconography, Staub’s video backdrop using Scream Icon conveys ‘new information, new aesthetics, new insights and understandings’ that are plainly distinct from those of the original piece.” However the award of legal fees was overturned as the appellate court found the decision “close and difficult”.

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