- Court: Intellectual Property Archives
- Area(s) of Law: Copyright, Infringement; Fair Use
- Date Filed: 08-07-2013
- Case #: 11-56573, No. 11-57160
- Judge(s)/Court Below: 9th Cir. Cal.
- LexisNexis Citation: 2013 U.S. App. LEXIS 16322
- Westlaw Citation: 2013 WL 4007803
- Full Text Opinion
Opinion (O'Scannlain): Derek Seltzer is an artist and illustrator. In 2003, Seltzer created the Scream Icon, a drawing of a screaming, contorted face. Roger Staub later used the images a video backdrop for one of Green Day's songs. In 2009, Seltzer registered a copyright in Scream Icon, and his counsel sent Green Day a cease-and-desist letter. Green Day subsequently stopped using the video backdrop. In March 2010, Seltzer filed the instant action alleging direct and contributory copyright infringement, violations of the Lanham Act, and various state law claims. Whether Green Day's use of Seltzer's Scream Icon constituted fair use is a mixed question of law and fact that the judge reviewed de novo. The first factor in the fair use inquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." Because the work in this case was transformative, fair use was met for this factor. The second factor to consider is "the nature of the copyrighted work." Because Seltzer controlled the first public appearance of the work, this factor weighs towards Green Day's fair use of the image. The third factor looks to the quantitative amount and qualitative value of the original work used in relation to the justification for that use. Even though the whole work was used, no more than was needed for the intended use was taken, so this factor did not weigh against Green Day. The fourth factor asks what effect the allegedly infringing use has on the "potential market for or value of the copyrighted work." Because the original work was intended as street art and Seltzer testified that the work only lost subjective value for him due to Green Day's use, this factor did not weigh against Green Day. The Court determined that Green Day's use of Seltzer's Scream Icon was fair, and thus AFFIRMED the district court's ruling.