Seltzer v. Green Day, Inc.

Where an allegedly infringing work imbues some “new expressive content” or a new “message is apparent,” this work will usually be found transformative and thus covered under the Fair Use Doctrine; even when few physical changes to the original work have been made and the new work fails to comment on the original.

Derek Seltzer sued the rock band Green Day for alleged unlawful use of Scream Icon, a certain piece of Mr. Seltzer’s artwork. Green Day had used a L.A. street wall as a background in a music video which contained a prominently displayed depiction of an almost unaltered Scream Icon. Green Day successfully argued for summary judgment based on a fair use theory under 17 U.S.C § 107. Green Day was also awarded attorney fees in excess of $200,000 under 17 U.S.C. § 505. The Ninth Circuit analyzed the video and weighed the fair use doctrine’s four factors to determine whether Green Day’s use of Mr. Seltzer’s work was “fair”. The panel held that where an allegedly infringing work imbues some “new expressive content” or a new “message is apparent,” this work will be found transformative; even when few physical changes to the original work have been made and the new work fails to comment on the original. The panel determined: (1) Green Day’s religiously focused video used the work in a transformative fashion and it's use was only tangentially commercial in nature; (2) Mr. Seltzer had widely used Scream Icon in public venues; (3) Green Day’s use of the work served a “different market function” than Mr. Seltzer’s use; and (4) the panel found no evidence Green Day’s use impacted any “traditional, reasonable, or likely to be developed markets." The panel affirmed the lower courts summary judgment on Mr. Seltzer’s use claims. The panel found this was “a close and difficult case” and vacated Green Day’s attorney fee award. AFFIRMED and VACATED and REMANDED.