An artist sued the band Green Day for copyright infringement, trademark infringement, and unfair competition, alleging that the band used the artist's copyrighted image as part of a video backdrop displayed during certain live Green Day performances without permission. The image had been included in a photograph that was created by Green Day's set designer and displayed during a single song in Green Day's thirty-two song set. The District Court for the Central District of California granted Green Day's motion for summary judgment with respect to the copyright claim, finding that the use of the image was a fair use. The court found that the use was transformative because it added various elements, including graffiti, brick backdrop, and a large red cross over the images, which "add something new, with a further purpose of different character" as compared to the plaintiff's original work. The court also found that the commercial significance of the use was "minimal, if not negligible," that although the entirety of the work was used, it was one of many visual elements used in the backdrop, and given the differences in the purposes of the works, the modified image "cannot reasonably be deemed a market substitute" for the original. The court also dismissed the plaintiff's trademark and unfair competition claims, reasoning that neither the plaintiff nor Green Day used the image in commerce as a trademark.
TIP: Although this unauthorized use in entertainment was found to constitute a fair use, the unauthorized use of a third party's work in advertising is less likely to be deemed fair use because advertising is highly commercial in nature.