The US Court of Appeals for the Ninth Circuit recently affirmed the US District Court for the Central District of California’s ruling that the rock band Green Day did not infringe the copyright of an artist through their use of the image in a video. Relying on the Fair Use Doctrine, the Court concluded that the use was primarily transformative in nature and declared the use fair, but vacated the lower court’s award of attorney’s fees. Seltzer v. Green Day, Inc., Nos. 11-56573, 11-57160, 2013 WL 4007803 (C.A.9 August 7, 2013).

Green Day hired a photographer to create a video that was to be shown behind the band when they played. The photographer took a photo of a wall in Los Angeles that was covered in posters and graffiti, which included a weathered and torn copy of Scream Icon. The four minute video depicts a time-lapsed image of a brick alleyway covered in graffiti, which as the song “East Jesus Nowhere” is played, multiple graffiti artists come and go, adding new art, posters, and tags to the alleyway.

In reaching its conclusion, the Court found the use to be transformative in nature, that the use was only incidentally commercial, and that it did not diminish the market value of the original work. The Court looked at the video and determined that Staub had managed to transform the original image in terms of its message, content, and aesthetics such that the original could be considered more in terms of raw material than an infringed work. In support of this argument, the Court noted that the video contained multiple images of street art, including Seltzer’s work, and that the video was thematically original in that it commented on a different topic, made different assertions, and voiced a different statement.

As a result, the Court found that Green Day’s use of Scream Icon was a fair use and not an infringement of Seltzer’s copyright.