The well-known punk-pop band Green Day have won their legal battle against an artist after it was claimed that the band had infringed the artist’s copyright in one of their music videos.
The case, reported at Reuters and The Music, originated from a video that Green Day produced for use in its 2009 global tour. This video, shown at the concerts that the band performed at on its tour, used a version of artwork attributed to Dereck Seltzer, a Los Angeles illustrator, for the video backdrop of a song called “East Jesus Nowhere”
The illustration in question was an abstract image of an anguished, contorted face that Seltzer produced in 2003 and named “Scream Icon”. In the Green Day video the contorted face was covered by a spray-painted red cross. The use of artwork which apparently was similar to the “Scream Icon” came to Mr Seltzer’s attention and he was apparently unhappy with this, threatening and then commencing litigation in the Californian courts in what he saw as an infringement of his copyright in the artwork. The case came before the 9th Circuit Court of Appeals in California earlier this year.
The court, hearing evidence from both sides, ruled that the use of Seltzer’s artwork did not infringe on his copyright and that the band were therefore not liable for such. In what the court called a “close and difficult case” it ruled that bands can use copyrighted works in to enhanced the experience of concert fans provided that they do not simply copy the works or damage the value of the works in any way. Judge Diarmuid O’Scanlon, writing for the 9th Circuit court panel, stated that the use of the “Scream Icon” was fair and was not “transformative or overtly commercial” despite making few actual alterations to the artwork. He stated that it’s use of religious iconography conveyed “new information, new aesthetics, new insights and understandings that are plainly distinct from those of the original piece”. He also found that the use of the artwork had not affected the value of Seltzer’s artwork to its detriment and that the absence of the artwork from the band’s merchandise and promotional material was also to the band’s credit in the litigation. However, although Seltzer did not succeed in his appeal against the judgment of the lower courts the appeal court did overturn an order that he pay the band’s $201,000 costs in pursuing the case, holding that Mr Seltzer had not been “objectively unreasonable” in suing for copyright infringement.
Reuters reported that neither lawyers for Seltzer nor lawyers for Green Day immediately responded to requests for comments.
Chris Hadrill, an employment solicitor at Redmans, said: “This interesting case from the American courts demonstrates the twists and turns that copyright litigation can take and, most importantly, what fair use of copyright material may be deemed to be.”
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