In April we discussed the Second Circuit Court of Appeals’ much-anticipated decision in Cariou v. Prince, which explored the “fair use” defense in copyright-infringement cases.  The Cariou decision was of great interest to the art community because of its implications for “appropriation” art, which incorporates or builds off of the copyrighted works of others.  This month, the Ninth Circuit Court of Appeals issued another important opinion involving the application of the fair use defense in the context of appropriation art.  The case involved the rock band Green Day’s unauthorized use of an image by artist Dereck Seltzer in the band’s video backdrop for its live concerts.  In an opinion authored by Judge Diarmuid O’Scannlain, a three-judge panel upheld a summary judgment in favor of Green Day.

In 2003, Seltzer created a drawing of a screaming face, which he titled Scream Icon.  He created copies and posters of the drawing, and some of the posters have been displayed as street art in Los Angeles.  In 2008, defendant Roger Staub, a professional lighting and video designer, took a photograph of a brick wall in Los Angeles covered with graffiti and posters, including a weathered and torn Scream Icon poster.  A short time later, Staub was hired to create video backdrops to be used on stage during Green Day’s upcoming performance tour.  As part of his work, Staub compiled a four-minute video for Green Day’s song “East Jesus Nowhere”; the video uses footage of graffiti artists and graffiti exploring religious themes.  During the entire video, the center of the frame contains a modified version of Scream Icon.  Staub took the image of Scream Icon from his photo of the poster on the Los Angeles street; he then modified the contrast and color, added black streaks down one side of the face, and added a large red cross (in “spray-paint” style) over the entire face.  The video was publicly displayed approximately 70 times in live concerts during Green Day’s 2009 performance tour.

Seltzer brought claims against Green Day, Staub, and a number of related entities in federal court alleging copyright infringement.  The defendants moved for summary judgment, arguing that the use of Scream Icon in the video constituted fair use.  The district court agreed. The Ninth Circuit’s fair use analysis relied on the standard four factors:  (1) the purpose and character of the use (including whether it is for profit or educational), (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the entire copyrighted work, and (4) the effect of the use on the potential market for or value of the copyrighted work.  The court noted that a key element in fair use analysis is whether the allegedly infringing work is “transformative” of the copyrighted work; but the court also acknowledged that whether a work is transformative is often a “highly contentious topic,” and cited Judge Wallace’s partial dissent in the Cariou case.  The Ninth Circuit panel here looked to the Supreme Court’s explanation of transformative use—i.e., the later work is transformative of the first when it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”

The panel then concluded that, under this formulation, Green Day’s use of Scream Icon is transformative.  First, Scream Icon, though “prominent” in the video, was only a component of a larger work that (in conjunction with the song lyrics) explores issues including religion and Christianity; Green Day’s use altered the expressive content of the original work.  This was true, said the court, “even where—as here—the allegedly infringing work makes few physical changes to the original or fails to comment on the original.”  Given its transformative nature and the fact that Green Day’s use of Scream Icon was “only incidentally commercial” (it was never used to market the concert, CDs, or other merchandise), the first fair use factor favored the defendants.  The second favor, the court held, “slightly” favored Seltzer; the nature of Scream Icon was a creative work that merits strong copyright protection, but on the other hand, Seltzer had controlled its initial publication, and it had since been widely disseminated.

The third factor did not weigh against Green Day, because although the video essentially incorporated Scream Icon in its entirety, the work was not divisible and the video used “no more than necessary” to achieve its new message.  The fourth and final factor favored Green Day because Seltzer had testified that the value of his work was not affected by the alleged infringement.  Moreover, Green Day presented evidence that the video did not impact the market for the original work, particularly as it was never used on merchandise or promotional materials.  The court also noted that, although Seltzer had apparently, on one occasion, licensed the image for use in a music video by another band, there was no information about how the work was used or what Seltzer earned from the licensing; the evidence was insufficient to show that Green Day harmed a market for Seltzer’s work.  Thus, given the overall fair use analysis, and the emphasis in copyright case law on the importance of the first and fourth factors (which here favored Green Day), the Ninth Circuit upheld summary judgment for the defendants.

This case, like Cariou, represents a victory for appropriation art; artists who use others’ copyrighted works (as well as those who display or deal in appropriation art) may be able to successfully employ a fair-use defense, even where the secondary work uses most or all of the appropriated work, and even where the secondary work makes no comment on the original.  The cases also both emphasize the importance of the transformative nature of a work in fair use analysis, even though, as the Ninth Circuit noted, the case law regarding transformativity is “splintered.”  Both decisions highlight the complex, fact-intensive, case-by-case inquiry involved in a fair use defense. Thus, appropriation art may still carry some risk of liability for copyright infringement, depending on the specific circumstances; there are few bright-line rules available to those who wish to absolutely insulate themselves from liability (or at the very least, litigation costs) when it comes to creating or dealing in appropriation art.