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9 August 2013Copyright

Green Day win “close and difficult” copyright case

US rock band Green Day have narrowly triumphed over an illustrator who sued the band for copyright infringement.

The US Court of Appeals for the Ninth Circuit affirmed on August 7 that the band’s use of the Scream Icon image, created by Derek Seltzer, was fair.

Seltzer’s drawing of a screaming, contorted face appeared on brick wall in Los Angeles and was photographed by Roger Staub, who Green Day hired to create the video backdrops for a 2009 tour.

The illustration was used about 70 times on the tour, each time with the same song that lasted about four minutes. Staub had modified the original photo by cutting out the image and adding a large red spray-painted cross over the middle of the screaming face. He also changed the contrast and colour, and made some other changes.

Seltzer filed suit in March 2010, alleging direct and contributory copyright infringement, before Green Day and Staub moved for summary judgment that the use of the image was fair.

The US District Court for the Central District of California agreed, with that ruling now upheld on appeal.

Most notably, the appeals court found, the purpose and character of the use was transformative because the video altered the expressive content or message of the illustration and the use “was not overly commercial”.

The court said: “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 (images of Jesus Christ appear—and are defaced—several times during the course of the video).

“Green Day’s use of Scream Icon was only incidentally commercial; the band never used it to market the concert, CDs or merchandise.”

But the court said case was “close and difficult”, especially as the transformation was far from obvious given Green Day’s only slight alterations to the original.

“Furthermore, of the remaining three factors, one was in Seltzer’s favour, one was in Green Day’s favour, and one was neutral. There is simply no reason to believe that Seltzer ‘should have known from the outset that [his] chances of success in this case were slim to none’.”

The case highlights the importance of registering copyright, said Norman van Treek, attorney at law firm Sheldon Mak & Anderson PC, as Seltzer only registered his work after contacting Green Day about the image, at which point they stopped using it.

“If you want to protect your work, you need to have it registered. Damages only accrue once the work has been registered. If it’s valuable to you, spend the $35 (at the US copyright office) to register the work.”

Had Seltzer registered his illustration before contacting Green Day, he may have had a stronger case for showing infringement, said Van Treek.

“Because copyright is so subjective, registering gives you extra ammunition. Copyright is always a grey area. Every time you do copyright, you never know what the outcome is going to be.”

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