Seltzer v. Green Day, Inc.

Use of a mark in advertisements for an art gallery show did not qualify the mark for protection under the Lanham Act.

Opinion (O'Scannlain): In 2003, Derek Seltzer ("Seltzer"), an artist and illustrator, created the Scream Icon, a drawing of a screaming, contorted face. After creating this image he began copying them and posting them on walls around Los Angels. At times Seltzer used the Scream Icon to denote his presence and works on posters for his gallery shows. In 2008, photographer Roger Staub ("Staub") photographed a publicly posted copy of the Scream Icon and saved it to his personal collection. In May 2009, the band Green Day ("Band") released their newest album and hired a marketing firm to produce video back drops to accompany the new album during their promotional tour. The marketing firm in turn hired Staub to produce the video backdrops for each song. For the song East Jesus Nowhere, Staub created a video in which the Scream Icon was featured as the center image for the entire four minute video. The video backdrop was played at approximately 70 tour stops and during the Band's appearance at the 2009 MTV Music Video Awards. In November 2009, Seltzer filed for a copyright of the Scream Icon and sent a letter demanding compensation to the Band for their use of the image. A deal was unable to be reached and Seltzer brought suit for trademark infringement under the Lanham Act. The Lanham Act extends liability to "any person who uses in commerce any word, term, name, symbol or device which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association with such person with another person." The district court granted summary judgement to the Band because Seltzer failed to produce evidence that he used this mark when selling goods or services. On appeal, Seltzer argued the Scream Icon's placement on certain advertisements for his appearance at an art gallery show was sufficient to establish trademark rights. However, Seltzer did not present any evidence that the use of the mark was “sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind." Consequently, the district court's grant of summary judgment in favor of the Band was AFFIRMED.