Green Day’s Fair Use of Scream Icon

Calling it a “close and difficult case,” a federal appeals court ruled Wednesday that Rock group Green Day did not violate copyrights of Los Angeles artist Dereck Seltzer by using his Scream Icon in a video backdrop to its stage show.  Although the 9^th U.S. Circuit Court of Appeals sided with the band, it did reverse a $200,000 attorney fee award the lower court had ordered Seltzer owed.

The court held that Green Day’s use of the altered work was “fair use.”

Seltzer created Scream Icon in 2003, of a contorted screaming face and used it in posters and prints he has sold and given away.  He has also used it to identify himself over the years by putting the Scream Icon on ads for gallery appearances.  He also licensed it for use in a music video.

Green Day, a major rock band that has sold over 70 million records worldwide since 1987, hired a designer to create video backdrops for a 2009-10 tour to support release of its album 21^st Century Breakdown.

The designer used the Scream Icon, modifying it with large red spray-painted cross in the middle of the face and streaks down the face.  While the image is altered, the Scream Icon is nonetheless clearly identifiable, according to the court.

Seltzer sued after seeing use of his image in the 2009 music awards ceremony.  But his suit was dismissed and he was ordered to pay $200,000 in Green Day legal fees for an “unreasonable” claim.

“This is a close and difficult case,” wrote Judge Diarmuid O’Scannlain.  “We concluded that Seltzer’s work was transformed by Green Day’s use.  But it was only “slight alterations from the original,” he said.

In the three– four-factor test used by the court, O’Scannlain said the transformation was not slight and of the remaining three factors, one favored Seltzer, one favored Green Day and one was neutral.

There was no reason to believe Seltzer should have known at the outset of the suit that his chances of winning were slim, O’Scannlain said.  The court vacated the attorney fees and ordered each side to pay its own costs on appeal.

Case:  Seltzer v. Green Day, Inc., No. 11-56573