What began as a statement of religious hypocrisy ended in screaming silence. Life met art when Green Day’s song, East Jesus Nowhere, was performed live against a video backdrop that included Dereck Seltzer’s Scream Icon during stops on their 2009 tour.
In an effort to capture the meaning of East Jesus Nowhere, Green Day’s videographer included a photograph he took of a wall filled with graffiti at the corner of Sunset and Gardner Avenue in Los Angeles. The wall included an image of the Scream Icon, which he modified with a large red cross painted over the face and black streaks painted down the right side of the face. With the Scream Icon photograph as the focal point, the videographer then filmed the wall over several days, capturing more graffiti and tagging added to the wall, and then created an accelerated version of the video, which was played during the punk band’s live performance of the song.
Seltzer filed a lawsuit for, inter alia, copyright infringement and violations under the Lanham Act, which protects trademarks. Billie and the boys argued that the Scream Icon had been transformed and was thus protected under the Fair Use exception to copyright infringement.
The Ninth Circuit Court of Appeals stated that, “The fair use doctrine ‘permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster,’” citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). The Court reiterated that fair use of a copyrighted work is not an infringement of copyright and provided the four factors to be considered: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (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 potential market for or value of the copyrighted
Citing the U.S. Supreme, the Ninth Circuit stated that the central purpose of the first factor (above) is to see “…[W]hether and to what extent the new work is transformative. Works of this type lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more ‘transformative’ the new work, the less will be the significance of other factors.”
Seltzer admitted that the Scream Icon addressed the themes of youth culture, skateboard culture and insider/outsider culture.” Whereas, Green Day argued that the image was used as a raw matter to create something new – specifically, the addition of the painted cross surrounded by images of other religious iconography to convey the new meaning of song’s hypocrisy of religion. Therefore, the commercial use under the first factor was also determined to be incidental because the image was not used to sell show tickets, CDs and/or merchandise.
Under the second factor, the court determined that while Seltzer’s art merited stronger copyright protection because of its creativity, it had also been widely published and, axiomatically, his artistic expression had already occurred.
The third factor focused on the quantitative and qualitative amount of the original work used by Green Day, which the Court found to be substantial. However, the Court also noted that the entire image was necessary achieve the new expression Green Day sought.
The fourth factor also favored Green Day, based mostly on Seltzer’s testimony that the value of his work had not changed nor had anyone told him they would not buy his work because of Green Day’s video. Also quite persuasive was the fact that the modified Scream Icon was not placed on CDs and merchandise and other promotional material for sale, and was only used in one song during a three hour touring show.
The court stated that The Lanham Act extends liability to any person who “uses in commerce any word, term, name, symbol, or device . . . which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person . . . .” 15 U.S.C. § 1125(a).
However, the district court had already concluded that Seltzer had failed to provide sufficient evidence of establishing the Scream Icon as a trademark in the sale of his goods or services.
On both copyright and trademark claims, Seltzer’s screaming claims fell on deaf ears and lost on Green Day’s Motion for Summary Judgment. The only saving grace was that the Ninth Circuit Court of Appeals ruled that Seltzer’s lawsuit wasn’t frivolous, removing the burden of paying for Green Day’s attorney’s fees. However, after paying for his attorney’s fees and costs, Seltzer just may feel like an American Idiot.