Dereck Seltzer v. Green Day, Inc.
725 F.3d 1170
9th Cir.2013Background
- Derek Seltzer created the illustration “Scream Icon” in 2003 and distributed/postered copies as street art; he later registered copyright in 2009 after learning of Green Day’s use.
- Roger Staub photographed a graffiti-covered brick wall (including a weathered Scream Icon poster) and used that photograph to create a ~4-minute video backdrop for Green Day’s song “East Jesus Nowhere.”
- Staub cut out the Scream Icon from his photograph, altered color/contrast, added a red spray-painted cross and black streaks, and placed the modified image prominently in the center of the video while other religious images are shown and defaced.
- Green Day displayed the backdrop at ~70 concerts and at the 2009 MTV Video Music Awards; Seltzer objected, registered the copyright, and sued for copyright infringement, Lanham Act violations, and related state claims.
- The district court granted summary judgment for Green Day on all claims (holding the use was fair) and awarded defendants $201,012.50 in attorneys’ fees; the Ninth Circuit affirmed summary judgment on copyright and Lanham Act claims but vacated the fee award and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright — fair use (overall) | Seltzer: Green Day reproduced his artwork without permission; use was not fair. | Green Day: Use was transformative and incidental to a commercial concert; fair use under §107. | Court: Use was fair — transformative purpose and no market harm; summary judgment for defendants affirmed. |
| Transformative character (Factor 1) | Seltzer: The work was only slightly altered; meaning not transformed. | Green Day: Incorporated Scream Icon as raw material into a new, religiously themed video altering its meaning. | Court: Transformativeness satisfied — new expression/meaning (religious context); weighs heavily for defendant. |
| Trademark/Lanham Act | Seltzer: Scream Icon served as a mark used on advertisements and thus supports Lanham Act claims. | Green Day: Seltzer lacks evidence of use-in-commerce sufficient to establish trademark rights. | Court: Summary judgment for defendants — Seltzer did not show trademark use or public association. |
| Attorneys’ fees under §505 | Seltzer: Suit was reasonable; not objectively baseless. | Green Day: Claims were objectively unreasonable and fees are warranted. | Court: District court abused discretion awarding fees; case was close — vacated fee award and remanded. |
Key Cases Cited
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (1994) (transformative use central to fair use inquiry)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (published/unpublished work importance and appellate review of fair use)
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (whole-image use may be fair if necessary for transformative purpose)
- SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273 (9th Cir. 2013) (fair use mixed question reviewed de novo)
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (analysis of transformation in visual art)
- Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (incorporation/alteration of photographs can be transformative)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (different market function supports fair use)
- Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70 (2d Cir. 1997) (decorative use not transformative)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (standards for awarding attorneys’ fees in copyright cases)
- Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003) (whether fee award furthers copyright Act’s purposes)