The unauthorized use of a drawing as part of the backdrop for a video aired at concerts did not violate the artist’s copyright, the 9th U.S. Circuit Court of Appeals said in a suit brought against rock group Green Day.

Derek Seltzer sued the band after his “Scream Icon” – a drawing depicting a screaming face – was displayed during concerts on the group’s 2009-2010 tour. Seltzer created the drawing in 2003, printed it on posters and stickers, and put them on public spaces in the Los Angeles area. A set designer hired by the band saw the drawing, took a picture, and incorporated it into a video backdrop for the song “East Jesus Nowhere.”

The roughly four-minute video depicted a brick alleyway covered in graffiti. During the song, several days pass as various graffiti artists come and go and add new art and tags to the brick. The center of the frame is dominated by “Scream Icon,” to which the set designer added a large red spray-painted cross in the middle of the face. The contrast and color were also changed and black streaks were added, running down the right side of the face. The song itself addressed religious hypocrisy; the video featured at least three images of Jesus Christ, which were defaced during the course of the song.

Seltzer sued when he learned about the use of his drawing in the video, which played at approximately 70 concerts during the tour as well as during Green Day’s performance at the MTV Video Music Awards.

Evaluating Green Day’s fair use defense, the 9th Circuit analyzed the relevant four factors: “(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 work.”

The first factor – the purpose and character of Green Day’s use – was dispositive, the three-judge panel said, because the band’s use of “Scream Icon” was transformative. “Green Day used the original as ‘raw material’ in the construction of the four-minute video backdrop. It is not simply a quotation or a republication; although ‘Scream Icon’ is prominent, it remains only a component of what is essentially a street-art focused music video about religion and especially about Christianity,” the court said.

While the court found the “message and meaning” of the original “Scream Icon” to be debatable, “it clearly says nothing about religion.” In contrast, the video’s use of the drawing “[w]ith the spray-painted cross, in the context of a song about the hypocrisy of religion, surrounded by religious iconography, [the] video backdrop using ‘Scream Icon’ conveys ‘new information, new aesthetics, new insights and understandings’ that are plainly distinct from those of the original piece,” the panel wrote.

The court added that Green Day’s use of the drawing was “only incidentally commercial” because the band never used it to market the concert, CDs, or merchandise.

As a “creative work,” Seltzer’s drawing was entitled to strong protection under the second factor, the court said, which weighed slightly in his favor. As for the third factor, the drawing itself is not meaningfully divisible and therefore Green Day copied most of “Scream Icon,” both quantitatively and qualitatively. The court said this factor was neutral. Analyzing the fourth and final factor, the panel determined that the potential market for or value of “Scream Icon” was unchanged, and the band’s use did not perform the same market function as the drawing. This factor also weighed in favor of Green Day.

“The purpose and character of the use was transformative and not overly commercial,” the court concluded, finding Green Day’s use to be fair and affirming summary judgment for the band.

The panel did reverse a federal court’s award of $201,012.50 for Green Day, however. Unlike the federal district court, which found Seltzer’s claim “objectively unreasonable,” the 9th Circuit said it “was a close, difficult case.”

“We concluded that Seltzer’s work was transformed by Green Day’s use. But that transformation was far from obvious given Green Day’s only slight alterations to the original,” the court wrote.

To read the decision in Seltzer v. Green Day, click here.

Why it matters: The 9th Circuit noted that the law in the area of “transformative use” is splintered, but said that its conclusion about the use of “Scream Icon” was generally in line with other federal appellate authority, including a recent decision from the 2nd Circuit. The general principle: the allegedly infringing work must contain a new expressive message or content, the panel emphasized.