Gone are the days where live music performances consist solely of flashing lights, backup dancers and pyrotechnics. Today’s artists utilize massive video screens to coordinate descriptive images with their music. The availability of projected images present immense possibilities for set designers to use in creating the stage backdrops for musicians and copyright law encourages such fair use. While this certainly benefits the musicians and fans who pay to experience the shows, the artists who realize that their work is being showcased in a concert without their knowledge or permission may not have the same enjoyment. This was the case in Seltzer v. Green Day, 2013 WL 4007803.
Derrick Seltzer is an artist who created an image known as “Scream Icon” in 2003. Seltzer sold and distributed copies of the image on posters and stickers. In 2008, the set designer for the rock band Green Day photographed the “Scream Icon” image that was posted on a graffiti-filled wall in Los Angeles. Green Day subsequently used “Scream Icon” in its stage backdrop as part of a four-minute video for the song “East Jesus Nowhere” during its 10-city tour in 2009. The video backdrop depicted a brick, graffiti-covered alleyway that changed at an accelerated pace as graffiti artists added new art and religious images. The “Scream Icon” image, modified with a large red “spray-painted” cross over the middle of the screaming face and black streaks running down the right side of the face, dominates the center of the frame of the entire video. Upon finding out that Green Day was using his art, Seltzer filed a copyright and trademark infringement suit in March 2010 in the U.S. District Court for the Central District of California.
Green Day moved for summary judgment on the copyright and trademark infringement claims claiming fair use and lack of a valid trademark. The District Court granted summary judgment and on appeal, the Ninth Circuit Court of Appeals affirmed.
In Seltzer, the parties did not contest the issue of copyright infringement. The primary issue before the court was whether Green Day made fair use of the image. The fair use doctrine provides a valid defense to copyright infringement. In a fair use case, the court considers the following four factors set forth in the Copyright Act of 1976: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use on the value or potential market for the work.
Purpose and Character of the Use
Seltzer argued that Green Day’s use of “Scream Icon” was not transformative because it made minimal changes. The Ninth Circuit disagreed, finding that Green Day used the image as “raw material” in the construction of a four-minute video backdrop for a song and altered the image by adding a spray-painted cross, black streaks and religious iconography. According to the court, the use of “Scream Icon” in a creative backdrop for a concert was clearly different from how Seltzer originally intended to use the image, which was as a symbol of the youth skateboard and outsider culture of Los Angeles. Notably, the Ninth Circuit further found that Green Day’s commercial use of “Scream Icon” was incidental because it did not use the image to market its products or services.
Nature of Copyrighted Work and Degree of Use of Copyright Work
The Ninth Circuit agreed with Seltzer’s argument that copyright law protects “Scream Icon” because it is creative and unique. But the court found that the copyright protection was mitigated because “Scream Icon” was in the public domain since it was posted on the Internet. In addition the Ninth Circuit determined that although Green Day used an enlarged version of “Scream Icon,” the image was not divisible and the use of the entire image, rather than a portion, was necessary to achieve Green Day’s new expression and meaning.
Impact on Existing or Potential Market for the Work
The Ninth Circuit also found that Seltzer did not show any loss in value nor provide any evidence of an existing or potential market for “Scream Icon” that was harmed by Green Day’s use. The court rejected Seltzer’s argument that Green Day’s use of “Scream Icon” proves that there is a market for the image and gave little weight to Seltzer’s conclusory assertion of prior licensing offers and agreements. Importantly, the court found that Green Day’s use of the image as an accompaniment to one song in a three-hour concert did not perform the same market function as Seltzer’s street art image.
Seltzer continues a long line of fair use cases that provide little certainty in the application of the fair use doctrine. Application of the fair use doctrine has been described as “neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment.” In particular, the analysis of the “purpose and character” of the secondary use of a work and whether the use is sufficiently transformative or overly commercial is often the most contested, and confusing, issue in fair use cases. The Seltzer decision is hardly the norm, as other courts and circuits have declined to find fair use in similar appropriation of images cases. For example, in Bouchet v. Baltimore Ravens Ltd. P’ship, 619 F.3d 301 (2010), an artist who designed a logo that was later used by a professional football team in a highlight video brought copyright infringement claims against the team and others. The Fourth Circuit Court of Appeals rejected the Ravens’ argument that the use of the logo in a highlight film, which contained editing, music and narration, was transformative finding that the logo served the same purpose as the original: a symbol to identify the Ravens. Similarly, in Monge v. Maya Magazines, Inc., 688 F.3d 1164 (2012), pictures taken by a famous couple of the couple’s clandestine wedding were stolen and published in a magazine. The Ninth Circuit rejected the magazine’s fair use argument, finding that the publication of the photos in a photo montage, with related text and articles that announced the previously secret wedding in a magazine, was only minimally transformative and that the magazine simply reproduced the exact pictures in its article.
Despite the similarities in Bouchet and Monge with Seltzer, the differing results are not completely inconsistent, especially when you consider that courts are encouraged to be flexible and to analyze the fair use doctrine on a case-by-case basis. As these cases illustrate, subtle distinctions carry the day in fair use cases and the fair use factors emphasized seem to vary between case, courts and within circuits. For example, unlike Seltzer, where the court de-emphasized the commercial use of “Scream Icon,” the courts in Bouchat and Monge clearly emphasized the commercial use by the NFL of the logo in the sale of its highlight films and the use of the photos in the sale of the entertainment magazine, over any minimal transformative use of the works. As a result, the Ninth Circuit in Seltzer did not necessarily run afoul of these prior decisions, but instead carved out a unique space in which musicians can showcase their creativity by appropriating the copyrighted works of others into their live performances.
Seltzer confirms the strength of the fair use defense and availability to musicians and their performances as long as the use is novel and creative. Importantly, the decision comports with the objectives of the federal copyright laws by allowing prior works to be used in a new and creative way.
The court’s holding that Green Day’s use was fair use should be encouraging to musicians and set designers going forward. The Seltzer court reinforced appropriation of a work into a new work that improves the original. In addition, given that very little content escapes the clutches of the Internet, subsequent users may argue that the decision assures that virtually any image in the public domain will be deemed published, which favors fair use. The decision also illustrates how the fair use of images is analyzed differently from other works. Because images are not divisible, use of the entire work seems to have less of a negative impact on a fair use analysis, than in cases involving divisible works such as books or songs. Finally, fair use is likely to be found in the use of works by musicians absent some showing that an artist previously licensed his or her work for use in a concert or similar forum.
Despite Seltzer, musicians and set designers should proceed carefully. Seltzer further illustrates that considerations of fair use differ between courts, and within circuits. This particular holding is likely limited due to Seltzer’s clear lack of evidence – a plaintiff with a stronger prior commercial use or established presence in the image licensing market may have a stronger case against fair use. In addition, the court could have just as easily found that the use of “Scream Icon,” as part of a concert that fans paid to attend, was an overriding commercial use that did not amount to fair use. Importantly, the impact of Seltzer may be short-lived as the U.S. Supreme Court considers whether to hear a Second Circuit Court of Appeals appropriation case that would potentially clarify the standard for applying the fair use factors, including assessing how transformative a use is. See Cariou v. Prince, 714 F. Ed 694 (2d. Cir. 2013). Until then, Seltzer remains a strong tool for the fair use of copyrighted images by musicians.