Ninth Circuit Finds Fair Use Of Street Art In Concert Backdrop

On Wednesday, August 7, 2013, in what it called a "close and difficult case," a unanimous Ninth Circuit panel held that the band Green Day's unauthorized use of street artist Dereck Seltzer's image in a video backdrop for its stage show did not violate the artist's rights under either the Copyright Act or the Lanham Act. Seltzer v. Green Day, Inc., Nos. 11-56573, 11-57160, 2013 U.S. App. LEXIS 16322 (9th Cir. Aug. 7, 2013).

Plaintiff Seltzer, an artist and illustrator based in Los Angeles, created Scream Icon, a close-up image of a screaming face, in 2003. Seltzer made and distributed copies of Scream Icon in posters and small prints with adhesive backs. Many of the posters and prints were "plastered" around Los Angeles and elsewhere as street art. Subsequently, Seltzer has at times used the image to identify himself and the presence of his work, for example on advertisements for his gallery appearances, and licensed it for use in a music video.

Defendant Green Day is a popular rock band that has sold over 70 million records worldwide since its 1987 debut. The band released its most recent studio album, 21st Century Breakdown, in May 2009 and then toured in support of the album. In preparation for that tour, defendant Roger Staub, a photographer and professional video designer, created a video backdrop for each of the songs that the band planned to perform. For his video backdrop for the song "East Jesus Nowhere," which Green Day's lead singer described as being about "the hypocrisy of religions," Staub created a brick alleyway covered in graffiti that is modified by graffiti artists during the course of the 4-minute video. On the wall, Staub included a version of Scream Icon from a photograph he had taken in Los Angeles in 2008 of a brick wall covered with street art. In the video backdrop, Staub covered the image with a red spray-painted cross and made other modifications to its color and contrast. The video backdrop was played at approximately seventy concerts and during the band's performance at the 2009 MTV Video Music Awards. At some point, Seltzer saw it, and after he complained, the band ceased using the backdrop.

Seltzer thereafter sued, alleging copyright infringement and violations of the Lanham Act. The district court granted summary judgment for Green Day, finding that its use of the image did not infringe Seltzer's copyright because it was a fair use, and that Seltzer's Lanham Act claims failed because neither Seltzer nor...