Scream Icon: Questioning the Fair Use of

Street Art in Seltzer v. Green Day, Inc.

SHANNON HYLE

ABSTRACT
The fair use doctrine, codified at 17 U.S.C. 107, aims to limit
copyright holders rights to their copyrighted works while allowing for the
development of works of art. With the fair use doctrine, secondary users
are provided with an avenue and incentive to apply their creativity and
innovation to generate something new out of original works of art.
However, this doctrine is overbroad and infringes on the protection that
should be afforded to copyright holders for their copyrighted works. The
Ninth Circuit was recently presented with an opportunity to apply the fair
use doctrine in Seltzer v. Green Day, Inc., where street artist Dereck Seltzers
work was used as a video backdrop during Green Days 21st Century
Breakdown world concert tour. In analyzing fair use, the Ninth Circuit was
required to consider: (1) the purpose and character of the use; (2) the nature
of the copyrighted work; (3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and (4) the effect of
the use upon the potential market for or value of the copyrighted work.
This Comment reexamines each fair use factor and argues that the Ninth
Circuits application of these factors demonstrates a flawed interpretation
of the fair use doctrine, especially as applied to street art and the
entertainment industry. Moreover, this Comment argues that a finding of
fair use in this case offends basic notions of fairness and public policy.

Juris Doctor, cum laude, New England Law | Boston (2015). B.A., summa cum laude,
American Studies, Providence College (2012). I would like to dedicate this Comment to my
parents, Stephen and Dolores Hyle, who provide me with constant love and inspiration. I
would also like to thank my colleagues on the New England Law Review for their support and
commitment throughout the writing process.

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INTRODUCTION

n 2003, artist and illustrator Dereck Seltzer created Scream Icon,1 a work
that he has since used to identify both himself and his artwork. 2 Seltzer
produced various copies of the artwork, in large and small sizes, and
many of his Scream Icon posters ended up lining the walls of Los Angeles as
street art.3 In 2009, the popular rock band Green Day began using Scream
Icon as the video backdrop to their East Jesus Nowhere performance
during their 21st Century Breakdown worldwide concert tour.4 Seltzer filed
suit against Green Day alleging, among other claims, direct and
contributory copyright infringement.5 The Ninth Circuit ultimately held
that Green Days use of Scream Icon constituted fair use, and therefore did
not amount to copyright infringement.6
Part I of this Comment provides background information about the fair
use doctrine under 17 U.S.C. 107, demonstrates how courts have applied
it, and discusses the relationship between the fair use doctrine and the First
Amendment. Part II presents the facts and procedural history of Seltzer v.
Green Day, Inc. Part III argues that the Ninth Circuits recent decision in
Seltzer v. Green Day, Inc. demonstrates a misguided interpretation of fair
use as applied to street art. Applying the four factors set forth in 107 to
the facts in Seltzer v. Green Day, Inc. reveals an absence of fair use. Finally,
Part IV of this Comment highlights the public policy challenges that are
presented when the greater public disregards an authors opinions about
their original works derivative and potentially unfair use.
I.

Background
A. The Fair Use Doctrine

Section 107 of the Copyright Act limits the exclusive rights that a
copyright owner may claim to their copyrighted work.7 To determine
whether use of a copyrighted work is fair or infringing, a court must apply

Seltzer v. Green Day, Inc., 725 F.3d 1170, 1173, 1182 app. A (9th Cir. 2013); see infra Exhibit

A.
2

Seltzer, 725 F.3d at 117374.

Id.
4 Id. at 117374.
5 Id. at 117475.
6 Id. at 1179.
7 See id at 1175.
3

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a four-factor test.8 These factors include:

(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes; (2) the nature of the copyrighted work; (3) the amount
and substantiality of the portion used in relation to the
copyrighted work as a whole; and (4) the effect of the use on the
potential market for or value of the copyrighted work.9

The leading Supreme Court case explaining and interpreting each of these
factors, while also synthesizing prior interpretations of the test, is Campbell
v. Acuff-Rose Music, Inc.10
According to the Campbell Court, an analysis of the first factor should
determine whether the use of an original, copyrighted work adds
something new, thereby supplementing and advancing the original works
purpose or character by changing its expression, meaning, or message. 11 A
fair secondary use will add to the value of the original work, altering it
with new information, new aesthetics, new insights and
understandings.12 In this way, the new work is considered
transformative of the original work.13 In addition, the Campbell Court
held that the more transformative a work is, the less significant the other
four factors of the fair use analysis become. 14 However, if the secondary use
merely reuses the original in a similar manner or for a similar purpose then
the secondary use supersedes the original and does not constitute fair use. 15
It is interesting to note that findings of transformativeness are highly
correlated with judicial findings of fair use, suggesting that this factor
weighs heavily on the scale when considering all of the fair use factors
together.16

See Seltzer, 725 F.3d at 1175.

Id. It is important to keep in mind that these four factors are to be included in a fair use
analysis, but are not exhaustive of the factors to be considered; ultimately the test is whether
copyright laws goal of promoting the progress of science and arts is served by allowing the
use. Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013).
9

10

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
Id. at 57879.
12 Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1111 (1990).
13 Campbell, 510 U.S. at 579.
14 Id.; see also Neil Weinstock Netanel, Making Sense of Fair Use, 15 LEWIS & CLARK L. REV.
715, 745 (2011); Jennifer Pitino, Has the Transformative Use Test Swung the Pendulum Too Far in
Favor of Secondary Users, 56 ADVOCATE, Oct. 2013, at 26, 29 (According to the data, courts
today are virtually ruling 100% of the time that a transformative use is a fair use. This has in
essence created a per se rule that transformative use is fair use.).
11

15
16

Leval, supra note 12, at 1111.

See Netanel, supra note 14, at 742. For a discussion of the danger of relying so heavily

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As to the second factor, the Campbell Court directs lower courts to

recognize that certain works are more central to the intent of copyright
protection than others.17 Courts should keep in mind that for those works
that are closer to the heart of copyright law, it is much harder to
demonstrate fair use.18 This factor, along with the third and fourth, is
meant to protect[] the incentives of authorship and favor the original
authors of creative works.19
Third, in considering the amount and substantiality of the portion
used in relation to the copyrighted work as a whole, the Campbell Court
directs courts to pay attention to the persuasiveness of the allegedly
infringing users justification, while keeping in mind the extent to which
the copying of a specific work is allowed, given the works purpose and
character.20 An analysis of this third factor is closely intertwined with the
first and fourth factors because it deals with justifying the purpose and
character of the secondary use, while also assisting in the market effect
analysis.21 This factor looks to protect the heart of a copyrighted work from
being infringed when a secondary user may try to claim fair use.22
Generally, the more a piece of work is used, or the more important the
used portion is to the work as a whole, the less likely it is that secondary
use will be considered fair use.23
Finally, in analyzing the fourth factor, courts should consider the
extent of market harm caused by the alleged infringing users actions and
whether the conduct on a widespread, unrestricted scale adversely affects
the original works potential market value.24 According to the Seltzer v.
Green Day, Inc. Court, this factor is as important to the fair use analysis as
the transformative factor.25 The ultimate goal of this factor is to ensure that
a secondary use does not interfere with the original authors purpose to the
upon transformation for a finding of fair use see Pitino, supra note 14, at 2930.
17 Campbell, 510 U.S. at 586; see, e.g., Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
34851 (1991) (contrasting creative works with factual compilations); Stewart v. Abend, 495
U.S. 207, 23738 (1990) (contrasting fictional short stories with factual works); Harper & Row,
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 56364 (1985) (contrasting an unpublished
memoir with a published work); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.
417, 455 n.40 (1984) (contrasting creative motion pictures with factual news broadcasts).
18

Campbell, 510 U.S. at 586.

Leval, supra note 12, at 1116.
20 Campbell, 510 U.S. at 58687.
21 Leval, supra note 12, at 1123.
22 See id. at 1122.
23 Id.
24 Campbell, 510 U.S. at 590.
25 725 F.3d 1170, 1179 (9th Cir. 2013).
19

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extent that it undermines the purpose of copyright protection.26

Courts recognize that reproducing a copyrighted work is sometimes
protected by the fair use affirmative defense.27 As a policy consideration,
the Supreme Court has quoted the circuit courts in stating that the fair use
defense permits courts to avoid rigid application of the copyright statute
when, on occasion, it would stifle the very creativity which that law is
designed to foster.28 Therefore, the Court displays a clear interest in
allowing innovation and productivity to grow from previously created and
copyrighted works via the fair use doctrine.29
In addition, the Supreme Court has recognized that fair use presents a
mixed question of law and fact.30 When a district court has completed
adequate fact-finding, appellate courts need only consider the question of
fair use as a matter of law in the context of the four fair use factors. 31
However, determining which facts are sufficient to raise the fair use
affirmative defense can be difficult because the doctrine is extremely broad
and open to interpretation depending upon the particular facts of the case
at hand.32 Courts may apply both broad and narrow interpretations of fair
use; some courts may hold that insubstantial similarity qualifies as fair
use,33 while other courts may hold that the copying of ideas or themes, but
not the expressions of those ideas or themes, constitutes fair use. 34
Ultimately, regardless of which approach a court applies, fair use

26

Leval, supra note 12, at 1124. Interestingly, when transformation is found under the first
factor, courts tend to find no market harm. Netanel, supra note 14, at 74344 (If a use is
unequivocally transformative, then, by definition, it causes no market harm since the
copyright holder does not have a right to exclude others from the market for transformative
uses.).
27

4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 13.05, 155 (2013).
Iowa State Univ. Research Found., Inc. v. Am. Broad., 621 F.2d 57, 60 (2d Cir. 1980); see
Campbell, 510 U.S. at 577 (quoting Stewart v. Abend, 496 U.S. 207, 236 (1990)).
28

29

See Campbell, 510 U.S. at 577.

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (citing Pacific &
S. Co. v. Duncan, 744 F.2d 1490, 1495 & n.8 (11th Cir. 1984)).
31 Id. (citing Pacific & S. Co., 744 F.2d at 1495).
32 4 NIMMER & NIMMER, supra note 27, at 3.
33 Id.; see Twentieth Century-Fox Film Corp. v. Stonesifer, 140 F.2d 579, 581 (9th Cir. 1944);
Mathews Conveyer Co. v. Palmer-Bee Co., 135 F.2d 73, 85 (6th Cir. 1943); Meredith Corp. v.
Harper & Row, Publishers, Inc., 378 F. Supp. 686, 689 (S.D.N.Y. 1974), affd, 500 F.2d 1221 (2d
Cir. 1974).
34 4 NIMMER & NIMMER, supra note 27, at 34; see Shipman v. R.K.O. Radio Pictures, Inc.,
100 F.2d 533, 537 (2d Cir. 1938); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d
Cir. 1936); Holdredge v. Knight Publg. Corp., 214 F. Supp. 921, 923 (S.D. Cal. 1963).
30

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determination requires a reasonableness analysis.35

35

See 4 NIMMER & NIMMER, supra note 27, at 56.

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B. Balancing the Fair Use Doctrine with the First Amendment

The fair use doctrine attempts to resolve a struggle that has emerged
between copyright law and the First Amendment. 36 The First Amendment
provides for freedom of speech,37 and the fair use doctrine enables
individuals to transform copyrighted works into new mediums of
expression.38 There is a clear tension as to where the line should be drawn
between freedom of speech and the fair use of a copyrighted work that
must be at least briefly addressed.39
The Court of Appeals of New York concisely stated that the essential
thrust of the First Amendment is to prohibit improper restraints on the
voluntary public expression of ideas . . . . There is necessarily, and within
suitably defined areas, a concomitant freedom not to speak publicly, one
which serves the same ultimate end as freedom of speech in its affirmative
aspect.40 As such, the Constitution protects the freedom to publicly
express oneself in various mediums. 41 In the recent Eldred v. Ashcroft
decision, the Supreme Court noted that copyright protection is meant to be
an engine of free expression.42 However, copyright protection, by its very
nature, limits freedom of speech according to a copyright holders rights.43
In Harper & Row, Publishers, Inc. v. Nation Enterprises, the Court attempted
to reconcile copyright law with the First Amendment using the fair use
doctrine, concluding that the distinction between copyrightable expression
and uncopyrightable facts and ideas allows for copyright law to
incorporate the First Amendments objectives.44
The fair use doctrine accomplishes freedom of expression by allowing
a wide array of derivative works to flow from an original work of art. 45 At a
very basic level, the fair use doctrine safeguards First Amendment interests

36

Wainwright Secs. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977); see Keep
Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957, 960 (D.N.H. 1978).
37 U.S. CONST. amend. I.
38 17 U.S.C. 107 (2012).
39 See Travis J. Denneson, Article, The Definitional Imbalance Between Copyright and the First
Amendment, 30 WM. MITCHELL L. REV. 895, 897 (2004).
40 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985) (quoting Estate
of Hemingway v. Random House, Inc., 244 N.E.2d 250, 255 (N.Y. 1968)).
41

See U.S. CONST. amend. I.

Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
43 See Denneson, supra note 39, at 897.
44 See id. at 89899.
45 See Harper & Row, 471 U.S. at 560.
42

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where copyright law may seek to limit those interests.46 However, the fair
use doctrine may prove overbroad because it seeks to protect the use and
reproduction of copyrighted works, potentially infringing on an authors
rights to his work and its dissemination, as this Comment will argue was
the case in Seltzer v. Green Day, Inc.47
II. Seltzer v. Green Day, Inc.
A. Facts
In 2003, artist and illustrator Dereck Seltzer created Scream Icon.48
Scream Icon is a drawing of a screaming, contorted face.49 Seltzer massproduced the picture in both large and small prints, deciding to both sell
and give away the work.50 Scream Icon became so important to Seltzer and
his art career that he began to use the piece to identify himself and his
work, specifically using it in advertisements for his galleries and licensing
the artwork for use in a music video.51 Copies of Seltzers Scream Icon were
posted on a brick wall at the corner of Sunset Boulevard and Gardner
Avenue in Los Angeles, California.52 In 2008, Roger Staub photographed
Scream Icon on Sunset Boulevard, finding the artwork interesting, and
saved it in his personal photo library. 53
In 2009, Green Day, a rock band consisting of Billie Joe Armstrong,
Michael Pritchard, and Frank Wright, released their 21st Century Breakdown
album.54 In preparation for the albums world concert tour, Green Day
employed Performance Environmental Design, Roger Staubs employer, to
create and design the tours lighting, pyrotechnic effects, and video
backdrops.55 Staub was directed to create a video backdrop for each song
on Green Days set list.56 When it came time to make the video backdrop
46 Neil W. Netanel, Melville B. Nimmer Memorial Lecture: First Amendment Constraints on
Copyright after Golan v. Holder, 60 UCLA L. REV. 1082, 108889 (2013).
47

Doris Estelle Long, First, Lets Kill All the Intellectual Property Lawyers!: Musings on the
Decline and Fall of the Intellectual Property Empire, 34 J. MARSHALL L. REV. 851, 89192 (2001).
48 Seltzer v. Green Day, Inc., 725 F.3d 1170, 1173 (9th Cir. 2013).
49 Id.
50 Id.
51 Id. at 1174; see Jimmy Young, REVERBNATION, http://www.reverbnation.com/jimmyyoung
(scroll down to Videos and play the Song for the People videoScream Icon is visible
from 0:240:33) (last visited Apr. 15, 2015).
52

Seltzer, 725 F.3d at 1174.

Id.
54 Id.
55 Id.
56 Id.
53

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for East Jesus Nowhere, Staub wanted to convey the mood, tone, and
theme of the song, which he interpreted as a critique of religious
hypocrisy.57 To accomplish this goal, he utilized Scream Icon as the focal
point of a four-minute video depicting the passage of several days during
which graffiti and street artists come and post their artwork to a brick
alleyway.58 To modify Scream Icon, Staub added a large red cross over the
images face, altered the contrast and color of the artwork, and added a
couple of black streaks across the right side of the images face.59 The
original Scream Icon, however, remains blatantly recognizable at the center
of the video backdrop throughout the entirety of the songs performance.60
Green Day proceeded to feature this video backdrop during their East
Jesus Nowhere performances at seventy concerts in 2009 and during
Green Days MTV Video Music Awards performance on September 13,
2009.61 Upon learning about Green Days use of his artwork,62 Seltzer
promptly e-mailed the band, making them aware of their unauthorized use
and stating that he would like to resolve the issue.63 After no resolution
occurred, Seltzer registered a copyright in Scream Icon and sent Green Day
a cease-and-desist letter, at which point Green Day discontinued use of the
East Jesus Nowhere video backdrop.64
B. Procedural History
In March 2010, Seltzer filed a complaint alleging direct and
contributory copyright infringement, violations of the Lanham Act, and
various state law claims.65 The district court granted summary judgment to
Green Day on all claims, after Green Day argued for fair use of Scream Icon

57

Id.
Seltzer, 725 F.3d at 1174.
59 Id.; see id. at 1183 app. B; see infra Exhibit C.
60 Seltzer, 725 F.3d at 1174.
61 Id.
62 In August 2009, Seltzer received e-mails and phone calls informing him that Green Day
used Scream Icon as their video backdrop during a Los Angeles concert. Local Los Angeles Artist
Files Lawsuit Against Green Day for Copyright Infringement, PR NEWSWIRE,
http://www.prnewswire.com/news-releases/local-los-angeles-artist-files-lawsuit-againstgreen-day-for-copyright-infringement-89003477.html (last visited Apr. 15, 2015) [hereinafter
PR NEWSWIRE] (noting that Green Day used Scream Icon in promotional materials and concert
performances).
63 Seltzer, 725 F.3d at 117475.
64 Id. at 1175. Interestingly, Green Day took note of Seltzers complaint but continued using
Scream Icon anyway, simply offering him concert tickets as a settlement. PR NEWSWIRE, supra
note 62.
58

65

Seltzer, 725 F.3d at 1175.

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under 17 U.S.C. 107.66 Green Day also moved for attorneys fees under 17
U.S.C. 505, which were granted in the amount of $201,012.50 when the
district court found that Seltzers claims were objectively unreasonable in
light of the evidence.67
C. Ninth Circuit Held Green Days Use of Scream Icon Was Fair
The Ninth Circuit analyzed Seltzer using the four-factor fair use test.68
First, the Court considered the purpose and character of Green Days use of
Scream Icon and determined that it was transformative, following the
precedent set by Campbell.69 and Second Circuit Judge Levals discussion of
transformative works.70 Recognizing that the message and meaning of
Scream Icon are subject to debate, the Court held that the original Scream
Icon clearly says nothing about religion.71 The Court also held that
Staubs superimposed, spray-painted cross over Scream Icon successfully
produced a video backdrop that conveyed new information, new
aesthetics, new insights and understandings.72
Second, the Court considered the nature of the copyrighted work,
noting that Scream Icon is a creative work and that Seltzer controlled the
first public appearance of the widely disseminated work. 73 Ultimately, the
Court held that this factor weighed slightly in Seltzers favor, but did not
rule out Green Days fair use.74
Third, the Court considered the quantitative and qualitative values of
the work, deciding that Green Day copied most of Scream Icon in both
quality and quantity.75 However, according to the Ninth Circuit, this
amount of copying could still yield fair use because the use of the entire
work was necessary to achieve Green Days new expression, meaning, or

66

Id.
Id.
68 Id.
69 Seltzer, 725 F.3d at 117576; see 510 U.S. 569, 57879 (1994) (holding that a work is
transformative when it adds something new, with a further purpose or different character,
altering the first with new expression, meaning, or message).
70 Seltzer, 725 F.3d at 1176; Leval, supra note 12, at 1111 (clarifying that transformative use of
a work must be productive and utilize the original work in a different manner or for a
different purpose than the original).
67

71

Seltzer, 725 F.3d at 1177.

Id.
73 Id. at 1178.
74 Id.
75 Id.
72

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message.76
Finally, the Court held that Green Days use had an insignificant effect
on the future market for or value of Scream Icon.77 The Court determined
that the value of Scream Icon was unchanged after Green Days use and the
market function of Scream Icon as a video backdrop for a song during a
concert tour was distinct from its original market function as street art.78

ANALYSIS
III. Green Days Use of Scream Icon Does Not Satisfy the Four-Factor
Test for Fair Use
A. The Purpose and Character of Green Days Use of Scream Icon Does
Not Qualify as Fair Use
1.

Green Day Failed to Adequately Transform Seltzers

Original Work

The Ninth Circuit held that Scream Icon was sufficiently transformed to
constitute fair use given that Staub superimposed a spray-painted red
cross, altered the contrast and color, and added black streaks that ran down
the right side of the images face.79 To constitute transformative use, Staub
must have added something new to the work that either advanced the
works purpose or gave it a different character, thereby imparting a new,
unique expression, meaning, or message on the work.80
In Campbell, a musical parody constituted transformative use.81 The
Campbell Court determined that a parody could be used to shed light on an
earlier work, thereby creating a new expression. 82 However, the Campbell
Court also remarked that when an alleged infringer merely uses an original
copyrighted work to get attention or to avoid the drudgery in working up
something fresh, and the new work does not sufficiently criticize the
original works substance or style, then the claim of fair use via

76

Id. at 117879 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).
See Seltzer, 725 F.3d at 1179.
78 Id.
79 Id. at 1174, 1179.
80 Campbell, 510 U.S. at 579; cf. Cariou v. Prince, 714 F.3d 694, 711 (2d Cir. 2013) (remanding
analysis of four pieces of artwork to the district court to determine whether relatively minimal
alterations qualify as transformative or whether they impermissibly infringe the original
authors copyrights in his original artwork).
77

81
82

Campbell, 510 U.S. at 583.

Id. at 579.

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transformation becomes extremely difficult to prove. 83 In Seltzer, Staub

testified that he did not want the image to say or represent anything.84 As
such, the superimposed cross upon Scream Icon does not add meaning or
criticism to Seltzers original work.85 An expert on modern art, Dr. Michael
Plante, also testified that painting a red cross on Scream Icon did not create
any significant symbolism, parody, or critical commentary.86 In fact, Dr.
Plante believed that Staubs version of Scream Icon had no meaning
separate and aside from Seltzers original work.87 Furthermore, Ninth
Circuit Judge Clifton stated the following during the proceedings: The
fact that youve projected anguish into the context of religion hasnt
transformed the original work of displaying anguish.88 Without injecting
any new substance or commentary into the original work, Green Day and
Staub lazily copied Seltzers original work without satisfying the criteria
for sufficient transformation.89
The Ninth Circuit also makes the bold statement that Scream Icon
clearly says nothing about religion.90 Artists aim to create original works
that will evoke strong subjective reactions, not works that will provoke
obvious, unemotional responses in their audience.91 To state that a specific
work definitely does or does not convey a specific message simply goes too
far; who is to say what a work of art does or does not mean to convey? 92
The Ninth Circuit errs in concluding that Scream Icon clearly did not convey
any messages about religion, thereby allowing the mistaken conclusion
that Green Days use was transformative.93
Green Days reproduction of Scream Icon is also not sufficiently
transformative in light of recent case law.94 In Kelly, the Ninth Circuit held
83 Id. at 580; see also Leval, supra note 12, at 1111 (A quotation of copyrighted material that
merely repackages or republishes the original is unlikely to pass the test; in Justice Storys
words, it would merely supersede the objects of the original.).
84

Statement of Genuine Disputes of Material Facts and Conclusions of Law at 6, Seltzer v.

Green Day, Inc., No. CV 10-02103 PSG (RCx) (C.D. Cal. Nov. 17, 2011), 2011 WL 5834626.
85 See id.
86 Id.
87 Id.
88 Matthew Heller, 9th Circ. Questions Green Days Use of Scream Icon, LAW360 (Feb. 5, 2013,
5:47 PM), http://www.law360.com/articles/412840.
89

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580 (1994).
Seltzer v. Green Day, Inc., 725 F.3d 1170, 1177 (9th Cir. 2013).
91 The Difference Between Art and Design, WEBDESIGNER DEPOT (Sept. 21, 2009),
http://www.webdesignerdepot.com/2009/09/the-difference-between-art-and-design/.
90

92

See id.
See Seltzer, 725 F.3d at 1177.
94 Compare id. at 1174 (discussing how Green Day merely transmitted Scream Icon in a
93

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that the use of copyrighted images as thumbnail images on an Internet

search engine displaying results in the picture form was fair use. 95 The
court determined that the character and purpose of Arribas thumbnail
images was sufficiently transformative. 96 Most significantly, the Ninth
Circuit noted that the majority of courts are reluctant to find fair use of an
original work when it is merely retransmitted in a different medium.97 In
Seltzer, Scream Icon served the same artistic function and was merely
transmitted in a different medium, from its original position as street art to
the focal point of a video backdrop in Green Days concert.98 In both
instances Scream Icon was used to inform and engage the viewer in an
aesthetic manner.99 Therefore, the video backdrop use of Scream Icon
supersedes its original nature and purpose as street art. 100 Green Days
superseding use of Scream Icon is not fair.101 Since Scream Icon was
conceivably meant for purely aesthetic purposes in both its original form
and its secondary use, Staub and Green Days use appears to be for the
same intrinsic purpose as Seltzers; as such, any fair use claim that Green
Day might assert is weakened.102 In Worldwide Church of God v. Philadelphia
Church of God, Inc., the Ninth Circuit recognized that where the use is for
the same intrinsic purpose as [the copyright holders] . . . such use seriously
weakens a claimed fair use.103
Green Days questionable transformative use of Scream Icon violates the
Copyright Act, as it replaces the desire for the original artwork. 104 The Kelly
v. Arriba Soft Corp. court noted that the derivative use of fine art as
thumbnail images in an Internet search engine did not stifle artistic
creativity, and therefore did not conflict with the Copyright Act; the
thumbnails were not used for illustrative or artistic purposes and did not
supplant the need for the originals.105 Staub and Green Days secondary use
different medium than the original work), with Kelly v. Arriba Soft Corp., 336 F.3d 811, 819
(9th Cir. 2003) (noting that courts should be wary of finding fair use where a work is merely
transmitted in a different medium).
95

Kelly, 336 F.3d at 815.

Id. at 817.
97 Id. at 819.
98 See Seltzer, 725 F.3d at 1174.
99 Kelly, 336 F.3d at 818.
100 But see id. at 819.
101 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 58788 (1994).
102 See Seltzer, 725 F.3d at 1176; Kelly, 336 F.3d at 819.
103 Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117 (9th Cir.
2000) (citing Weissmann v. Freeman, 868 F.2d 1313, 1324 (2d Cir. 1989)).
96

104
105

See Kelly, 336 F.3d at 820.

Id.

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is just another use of Scream Icon as a photograph, and the images ultimate
purpose as an artistic work is not altered.106 Therefore, one can reasonably
conclude that Green Days use of Scream Icon stifles Seltzers artistic
creativity because Green Days use is only for illustrative and artistic
purposes.107 Green Days use of Scream Icon for these purposes supersedes
the need for Seltzers original work, directly violating the Copyright Act.108
The Second Circuit in Cariou v. Prince held that a use with the same
purpose, but a different meaning, would qualify as transformative. 109 This
definition does not draw a clear line between a derivative work, which is
an original work of authorship that is based on a preexisting work, and a
transformative work.110 The question then becomes whether a work can be
fairly used when it serves the same purposes as the original work, such as
aesthetic enjoyment, social commentary, and so on.111 In light of Carious
definition of transformation, it is no longer clear what level of new
expression, meaning, or message [is] sufficient to render a piece
transformative.112
It is also interesting to note that although Staub alleges that he added
the streaks running down the right side of the face in Scream Icon, the
photograph of Scream Icon on Sunset Boulevard seems to feature those
same added streaks.113 Surely, Seltzer reasonably knew that in allowing

106

See Seltzer, 725 F.3d at 1174.

See Kelly, 336 F.3d at 820.
108 See id.
109 See Recent Case, Copyright LawFair UseSecond Circuit Holds that Appropriation
Artwork Need Not Comment on the Original to be Transformative.Cariou v. Prince, 714 F.3d 694
(2d Cir. 2013)., 127 HARV. L. REV. 1228, 1233 (2014) [hereinafter Appropriation Artwork].
107

110

See id. at 123334. A derivative work is a secondary work that modifies the original
work without being transformative, such as a work that presents material in a new art form.
Cariou v. Prince, 714 F.3d 694, 708 (2d Cir. 2013).
111 Appropriation Artwork, supra note 109, at 1233. The Cariou decision creates a major need
for a more workable standard of transformativeness for the fair use test. Id. at 1235.
Because outcomes based on value judgments are difficult to predict,
artists will struggle to conform their actions to the law ex ante, and the
ultimate outcome may be a chilling effect on the creation of cultural
products. And, to the extent that value judgments influence the legal
analysis, the principle of aesthetic neutrality in copyright lawthat all
types of works should be treated equally and not judged based on
perceived social valueis violated. A more workable standard is needed.
Id.
112

Id. at 1233.
Compare Exhibit B infra (showing streaks on the right hand side of Scream Icons face)
with Exhibit C infra (showing the same streaks on the right hand side of Scream Icons face).
113

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his work to be distributed as street art it would be subject to graffiti and

alteration.114 However, he could not have reasonably presumed that his
work would be held sufficiently transformed for fair use in a rock bands
worldwide concert tour, when the artwork had really been altered while it
still existed as street art and not by the rock band alleging the
transformation for fair use purposes.115
2.

Green Days Use of Scream Icon Qualifies as Commercial

Use

The Ninth Circuit also requires a consideration of the commercial

nature of the allegedly transformed work when analyzing the first factor of
17 U.S.C. 107.116 The Court must consider the amount that the alleged
infringer manipulated the copyrighted work for his or her own personal
commercial gain.117 The Ninth Circuit held that Green Days use of Scream
Icon only happened to be incidentally commercial.118 The Court justifies
this holding by noting that Green Day never used Scream Icon to market its
21st Century Breakdown tour, CDs, or merchandise.119
In arriving at its conclusion, the Ninth Circuit ignores and contradicts
Seltzers claim that Green Day used Scream Icon in promotional materials.120
The official music video for Green Days East Jesus Nowhere features
clips from the 21st Century Breakdown tour and plainly displays Scream Icon
throughout the duration of the performance.121 In particular, from minute
2:533:00, the music video no longer displays live images and instead

114

See Street Art: A Canvas for Graffiti, EXPRESS TRIBUNE (Oct. 19, 2013),
http://tribune.com.pk/story/619359/street-art-a-canvas-for-graffiti-islamabad-city/ (describing
street art and graffiti synonymously, while also featuring a picture demonstrating the overlap
of graffiti over other previous graffiti tags).
115 See Jareen Imam, From Graffiti to Galleries: Street vs. Public Art, CNN (Aug. 5, 2012, 9:30
AM), http://www.cnn.com/2012/08/03/living/ireport-street-art-public-art/ (stating that street
art is a way for artists to showcase their talents, while many artists go undiscovered or are
often criticized if they achieve public success).
116 Seltzer v. Green Day, Inc., 725 F.3d 1170, 1178 (9th Cir. 2013).
117 Elvis Presley Enters. v. Passport Video, 349 F.3d 622, 628 (9th Cir. 2003).
118 Seltzer, 725 F.3d at 1178.
119 Id.
120 PR NEWSWIRE, supra note 62; see also Green Day, East Jesus Nowhere, MTV (Apr. 16, 2012),
http://www.mtv.com/videos/green-day/444339/east-jesus-nowhere.jhtml [hereinafter East
Jesus Nowhere]. Music videos are strong promotional tools, which allow musicians to portray
their image while also reaching fans and the marketplace. Ryan Sweeney, 8 Ways to Make Your
Music Video Release Huge, WE ALL MAKE MUSIC (Sept. 12, 2011), http://weallmakemusic.com/8ways-to-make-your-music-video-release-huge/.
121

East Jesus Nowhere, supra note 120.

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prominently displays the Scream Icon image as lyrics flash across the
screen.122 Such use of Scream Icon must indicate more than incidentally
commercial use.123 Green Day used Seltzers work not just as a video
backdrop, but also as the backdrop to the official music video for East
Jesus Nowhere, which is accessible online to a virtually unlimited number
of viewers.124 Music videos are a major marketing tool in todays
technological age.125 As such, the Ninth Circuit was incorrect in their
assertion that Green Day never made use of Scream Icon as a marketing or
promotional tool.126
In addition, the Ninth Circuit held that direct economic benefit alone
does not demonstrate a works commercial use.127 A courts finding of a
previously copyrighted works commercial use may easily impede a
finding of fair use of that work.128 In todays society, many people listen to
music, but it has become increasingly harder to make money in the music
business.129 Artists aim to increase their income via live music
performances and concert tours.130 Concerts are a commercial venture for
performing artists, regardless of whether their shows generate a large
income.131 Though Green Day did not directly benefit from Scream Icons
use, they did benefit from the tour 132: the video backdrop became an
integral part of the show, setting the stage for one of Green Days most
popular songs.133
The Ninth Circuit also held that repeated and exploitative copying of

122

Id.
See Seltzer, 725 F.3d at 1178.
124 See East Jesus Nowhere, supra note 120.
125 Marketing Music Videos and Radio, ARTISTSHOUSE MUSIC, http://www.artistshouse
music.org/videos/marketing+music+videos+and+radio (last visited Mar. 31, 2015) (featuring a
video clip of Randy Lennox, President and CEO of Universal Music Canada, that discusses
the marketing potential of music videos).
126 Seltzer, 725 F.3d at 1178; see Sweeney, supra note 120; see also Marketing Music Videos and
Radio, supra note 125.
123

127

A&M Records v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001).
Id.
129 G.M., The Music Industry: On-Demand Touring, ECONOMIST (June 12, 2013, 10:58),
http://www.economist.com/blogs/prospero/2013/06/music-industry.
128

130

Id.
See Jacob Ganz, The Concert Ticket Food Chain: Where Your Money Goes, RECORD: NPR
(April 6, 2011, 1:30 PM), http://www.npr.org/blogs/therecord/2011/04/07/134851302/theconcert-ticket-food-chain-where-your-money-goes.
131

132

See id.
See BILLBOARD,
visited Apr. 23, 2015).
133

http://www.billboard.com/artist/303108/green-day/chart?f=793

(last

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copyrighted works, even if the copies are not offered for sale, may
constitute a commercial use.134 Green Day repeatedly used the Scream Icon
image during approximately seventy concerts, at the MTV Video Music
Awards,135 and in the East Jesus Nowhere music video.136 Green Day was
not selling their video backdrop; it was merely meant to set the stage and
mood for their East Jesus Nowhere performance.137 Still, the Ninth
Circuit should have concluded, consistent with their A&M Records v.
Napster, Inc. decision, that the continuous, repetitive, exploitative copying
of Seltzers copyrighted work constituted commercial use.138 Furthermore,
Green Day never procured Seltzers permission to use the image or paid
him royalties or compensation.139 A finding of commercial use would have
been proper here since the infringers repeatedly used the image without
compensating the copyright owner.140
B. The Nature of Scream Icon as a Copyrighted Work Warrants
Protection
In evaluating this second factor, courts consider the nature of the
copyrighted work, keeping in mind that some copyrighted works are
closer to the central intention of copyright protection than others. 141 The
Ninth Circuit held that this factor weighed only slightly in Seltzers
favor.142 Because Scream Icon is a creative work of art, which is close to the
core of intended copyright protection, it merits strong protection from fair
use claims.143 However, the Court noted that this factor would have
weighed more heavily in Seltzers favor if his work had been
unpublished.144 The Supreme Court held that [t]he right of first
publication implicates a threshold decision by the author whether and in
what form to release his work.145 Seltzer released his work by distributing
large posters and small stickers featuring Scream Icon; ever since the initial
release, the posters have been used as street art, mixed in with various

134

A&M Records v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001).
Seltzer v. Green Day, Inc., 725 F.3d 1170, 1174 (9th Cir. 2013).
136 East Jesus Nowhere, supra note 120.
137 Seltzer, 725 F.3d at 1174.
138 Compare id., with A&M Records, 239 F.3d at 1015.
139 See Seltzer, 725 F.3d at 1170.
140 See A&M Records, 239 F.3d at 1015.
141 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
142 Seltzer, 725 F.3d at 1178.
143 Id.
144 See id.
145 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 553 (1985).
135

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graffiti and other posters lining the streets of Los Angeles and beyond. 146
However, this release does not mean that Seltzer relinquished control
of the reproduction and public display of his work. 147 In a recent Central
District of California fair use case, the judge noted that to permit one artist
the right to use without consequence the original creative and copyrighted
work of another artist simply because that artist wished to create an
alternative work would eviscerate any protection by the Copyright Act.148
To allow Green Day to use Scream Icon without obtaining Seltzers
consent149 or suffering any negative consequences for their infringing use,
directly defies the Copyright Act.150 The Ninth Circuit should have
protected Seltzer by narrowing the scope of fair use and recognizing that
an original artist has a definite right in determining how their work is
disseminated, even after the works initial release into the public forum.151
C. The Amount and Substantiality of Green Days Use of Scream Icon
Is Not Fair
For the third factors analysis, courts must consider the quantity and
value of the work used, determining whether the extent of reproduction in
the secondary use is reasonably justified.152 In this analysis, value relates
to the quality and importance of the work that is used. 153 This analysis is
often connected with the first fair use factors analysis of the purpose and
character of the copyrighted work.154 Notably, the Campbell Court
recognized that the fair use analysis should consider whether a substantial

146

Seltzer, 725 F.3d at 117374.

See Friedman v. Guetta, No. CV 10-00014 DDP (JCx), 2011 U.S. Dist. LEXIS 66532, at *19
20 (C.D. Cal. May 27, 2011) (Without . . . protection, artists would lack the ability to control
the reproduction and public display of their work and, by extension, to justly benefit from
their original creative work.); Jordan S. Paul, Out with the Wash: Fair Use in the World of
Manipulation-Based Art, BHBA IP & NEW MEDIA BLOG (May 9, 2012, 5:59 AM),
http://bhbaipblog.wordpress.com/2012/05/09/out-with-the-wash-fair-use-in-the-realm-ofmanipulation-based-art/ (stating that, as time goes on, original authors of copyrighted works
are receiving greater protections, while the scope of fair use is reduced).
147

148

Friedman, 2011 U.S. Dist. LEXIS 66532, at *19.

Statement of Genuine Disputes of Material Facts and Conclusions of Law, supra note 84,
at 67.
150 See Friedman, 2011 U.S. Dist. LEXIS 66532, at *1920.
151 See Paul, supra note 147 (discussing the growing tendency of courts to provide greater
protections to copyright holders and original artists given the ease with which art and
photography can be proliferated and manipulated in the modern digital world).
149

152

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).

Id. at 587.
154 Id. at 586.
153

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amount of the copyrighted work is directly copied, remembering that a

work composed primarily of an original, particularly its heart, with little
added or changed, is more likely to be a merely superseding use, fulfilling
demand for the original.155
Green Day used Seltzers entire piece, not just an insignificant
portion.156 In contrast, in Sofa Entertainment, Inc. v. Dodger Productions, Inc.,
the Ninth Circuit held that the use of a seven second introduction clip from
The Ed Sullivan Show was not qualitatively significant and had only a
functional purpose in the secondary use.157 But here, Seltzers entire work
was utilized, with only a thin red cross158 superimposed onto Scream
Icons face, for the entire East Jesus Nowhere performance.159 Moreover,
the East Jesus Nowhere music video displays Scream Icon both alone on
the screen and as the video backdrop during live sequences of Green Days
performances.160 As such, it is arguable that the full use of Scream Icon does
not merely serve a functional purpose, but instead serves a similar artistic
purpose for both Green Day and Seltzer. 161
The Ninth Circuit did recognize that Green Day quantitatively and
qualitatively used most of Scream Icon.162 However, all of Scream Icon was
used by Green Day for its performance, and the Court failed to properly
recognize this full use.163 The Ninth Circuit claimed that Scream Icon was
not meaningfully divisible,164 stating that the use of the whole work was
required to bring about a new expression, meaning or message.165 But
because a work is not meaningfully divisible, it does not necessarily follow

155

Id. at 58788.
Seltzer v. Green Day, Inc., 725 F.3d 1170, 1174 (9th Cir. 2013).
157 See Sofa Entmt, Inc. v. Dodger Prods., 709 F.3d 1273, 1279 (9th Cir. 2013).
158 Statement of Genuine Disputes of Material Facts and Conclusions of Law, supra note 84,
at 5.
156

159

Seltzer, 725 F.3d at 1174.

East Jesus Nowhere, supra note 120.
161 See Rick Sanders, More Artist-on-Artist Fair Use Action: An Iconic Scream, a Rap Icon, IP
BREAKDOWN (Dec. 22, 2011), http://www.aaronsanderslaw.com/blog/more-artist-on-artist-fairuse-action-an-iconic-scream-a-rap-icon (comparing Seltzer v. Green Day, Inc. to Friedman v.
Guetta, where the court held that use of a photograph was not transformative since both
parties were visual artists and the use in both instances was not so different as to satisfy
transformation).
160

162

Seltzer, 725 F.3d at 1178.

Id. (stating that defendants used most of Scream Icon, thereby distracting from the fact
that defendants used all of Scream Icon).
163

164
165

Id.
Id. at 1178-79 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).

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that infringing users may take the heart of a work as their own.166 In Harper
& Row, Nation Enterprisess use of the most interesting and moving parts
of Harper & Rows unpublished manuscript was not fair use.167 In Seltzer,
Green Day used the most interesting and moving parts of Seltzers work
the entire Scream Icon image.168 Moreover, the Harper & Row, Publishers, Inc.
Court noted that Nation Enterprisess article, which copied original
passages from the unpublished manuscript, was structured around the
quoted excerpts which serve as its dramatic focal points.169 Similarly,
Staub structured the video backdrop around Seltzers Scream Iconit was
visible throughout the entire East Jesus Nowhere performance, larger
than all other images shown, and the central video backdrop on the stage
during the performance.170 Given its prominent position on the stage, it
would be hard to say that Green Day used only a meager . . . infinitesimal
amount of the original artwork. 171 It is clear that the image had an
expressive value and key role in the infringing work, qualities that
oppose a finding of fair use.172
D. Green Days Use of Scream Icon Has a Negative Effect Upon the
Potential Market for the Artwork
Under the fourth and final fair use factor, the Seltzer Court considered
the potential market for or value of Scream Icon, focusing on the extent of
market harm caused by the particular actions of the alleged infringer, [and]
also whether unrestricted and widespread conduct of the sort engaged in
by the defendant would result in a substantially adverse impact on the
potential market for the original.173 The Ninth Circuit focused on Seltzers
testimony that the value of his work was unchanged on the whole, but was

166

See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 56466 (1985).
Id. at 566. The unpublished manuscript at issue contained former President Fords
personal memoirs about his pardon of former President Nixon. Id. at 539. The Nation
Magazine scooped the article, using 300 to 400 words of verbatim quotes from the
unpublished manuscript, before Time Magazine had a chance to publish. Id.
168 Seltzer, 725 F.3d at 1174.
169 Harper & Row, 471 U.S. at 566.
170 See Seltzer, 725 F.3d at 1174; see also East Jesus Nowhere, supra note 120.
171 See Harper & Row, 471 U.S. at 566 (citing Harper & Row, Publishers, Inc. v. Nation
Enters., 723 F.2d 195, 209 (2d Cir. 1983)).
167

172 See id. (The Nation article is structured around the quoted excerpts which serve as its
dramatic focal points. In view of the expressive value of the excerpts and their key role in the
infringing work, we cannot agree with the Second Circuit that the magazine took a meager,
indeed an infinitesimal amount of Fords original language. (citations omitted)).
173 Seltzer, 725 F.3d at 1179 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590
(1994)).

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personally tarnished after Green Days use.174 The Ninth Circuit also
maintained that the use of Scream Icon as street art and as a video backdrop
served different market functions.175 However, the Ninth Circuit failed to
sufficiently consider the impact of Green Days use on traditional,
reasonable, or likely-to-be-developed markets.176
The Ninth Circuit should have recognized the similarity of this case to
Ringgold v. Black Entertainment TV, a Second Circuit case involving the
unauthorized use of artwork as a decoration on a television set that was
visible nine times during one scene.177 Such use is comparable to Green
Days use of Scream Icon as their video backdrop.178 In Ringgold, the
copyright holder argued that a potential market existed for licensing her
artwork, and that market was adversely affected by Black Entertainment
TVs use of her artwork.179 Similarly, in Seltzer, though Seltzer did not
sufficiently indulge the court about his licensing ventures, Seltzer did have
licensing opportunities for Scream Icon.180 Seltzer declared that Scream Icon
had previously been licensed for use in a music video.181 Such licensing
implies that reasonable markets were available and thus impacted by
Green Days use.182 Moreover, Green Days use of Scream Icon in its music
video shows that a market could reasonably exist for the use of Scream Icon
in music videos.183 When considering the effect of Green Days unlicensed
use on Seltzers market, the Court should have considered Seltzers
unrealized licensing revenues where such a licensing market existed. 184
Since Seltzer established that he had licensed Scream Icon for use in the
past, he should have introduced more evidence regarding licensing; this
support would have bolstered his claim that unrealized licensing revenues
should be considered when evaluating the effect of Green Days unlicensed

174

Id.
Id.
176 See Ringgold v. Black Entertainment TV, 126 F.3d 70, 81 (2d Cir. 1997).
177 Id. at 71, 73.
178 Compare Seltzer, 725 F.3d at 1174, and Exhibit C, and East Jesus Nowhere, supra note 120,
with Ringgold, 126 F.3d at 71, 73 (using the artwork at issue as a backdrop and focal point in all
instances).
175

179

See Ringgold, 126 F.3d at 81.

See Seltzer, 725 F.3d at 1179.
181 Id. at 1174, 1179; see Jimmy Young, supra note 51.
182 See Ringgold, 126 F.3d at 81.
183 Compare id. (discussing the licensing opportunities that the copyright holder had for her
copyrighted work), with Seltzer, 725 F.3d at 1179 (demonstrating Green Days use of Scream
Icon without a license), and East Jesus Nowhere, supra note 120.
180

184 See Gregory M. Duhl, Article, Old Lyrics, Knock-off Videos, and Copycat Comic Books: The
Fourth Fair Use Factor in U.S. Copyright Law, 54 SYRACUSE L. REV. 665, 692 (2004).

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use.185 Still, Seltzer demonstrated some degree of licensing and this

licensing market should have been treated more seriously by the Ninth
Circuit.186
Furthermore, a key point made by the Second Circuit in Ringgold was
that visual works are created, and sold or licensed, usually for repetitive
viewing . . . [and it follows that] unauthorized displays of a visual work
might often increase viewers desire to see the work again.187 Green Days
unauthorized use of Scream Icon could conceivably increase their fans and
the general publics desire to see the image again.188 Furthermore, since
viewers will likely be unable to travel to see Seltzers street art in person or
will be unaware of its existence, they will watch videos of Green Days
performance featuring Scream Icon instead.189 As a result, Green Days use
becomes a superseding use of Scream Icon that is not worthy of a fair use
designation.190 Videos that the general public uses to view Scream Icon may
be either recordings of Green Days live performances or the official music
video for East Jesus Nowhere; in both instances, Green Days secondary
use supplants the original work.191 In such situations of substitutive use,
fair use should not be found.192
Allowing Green Day and Staub the right to use Seltzers Scream Icon
without authorization or negative consequences wrongfully deprives
Seltzer of the ability to control public displays and future reproductions of
his work.193 Depriving Seltzer of the right to control his copyrighted,
original artwork prevents him from rightfully benefiting from it.194 A recent
Central District of California decision held that a copyright owners
commercial and artistic use of a photograph, by publishing and selling it to

185

Compare Seltzer, 725 F.3d at 1174, 1179 (discussing Seltzers prior licensing of Scream
Icon), with Duhl, supra note 184, at 692 ([I]t is imperative when evaluating the effect of the
unlicensed use on the copyright holders market to factor in unrealized licensing revenues
only where such a market for licensing existed.).
186

See Seltzer, 725 F.3d at 1174, 1179; Jimmy Young, supra note 51.
126 F.3d at 79.
188 See id. (stating that unauthorized use of a visual work may increase the desire for
repetitive viewing).
187

189

See id.
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 58788 (1994).
191 See Ringgold, 126 F.3d at 79 (Of course, no one would buy a videotape of the ROC
episode as a substitute for a poster, but the challenged use need not supplant the original
itself, only . . . the objects of the original.).
190

192

See Leval, supra note 12, at 112425.

See Friedman v. Guetta, No. CV 10-00014 DDP (JCx), 2011 U.S. Dist. LEXIS 66532, at *19
20 (C.D. Cal. May 27, 2011).
193

194

See id.

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collectors, was directly competitive with the defendants use of the

photograph.195 Similarly, allowing Green Days use, when that use
interferes with Seltzers incentives as a copyright holder, undermines the
goals of copyright law.196
Finally, one might argue that Green Days use of Scream Icon in their
hugely successful 21st Century Breakdown world tour would help, not
hinder, the market for Seltzers copyrighted work, by placing the work on a
much more public, popular stage. 197 There is a broad judicial consensus
that this fourth factor should solely focus on market harm not market help,
despite clear statutory language indicating that market help should be
considered.198 However, a major motivation behind street art is that it
remains outside of the commercial realm.199 Historically, street art has been
illegal in practice, with street artists concealing their identity to avoid
arrest.200 It logically follows that Scream Icons projection on a worldwide
stage would hinder Seltzers original goals in distributing the work as
street art in Los Angeles, since as a street artist he presumably had no
interest in making his work public art or selling out to commercial
enterprise to achieve popularity.201 One can infer that market harm
resulting from Green Days unauthorized use would indeed affect Seltzer
and his goals as an artist.202
IV. Holding Green Days Use of Scream Icon as Fair is Against Public
Policy
A. The Importance of Artistic Integrity
Courts have often stated that good faith is not necessary to a finding of

195

Id. at *19.
See Leval, supra note 12, at 1124.
197 See Bob Allen, Hot Tours: Black Eyed Peas, Green Day, Metallica, BILLBOARD (Nov. 18, 2010,
12:02 PM), http://www.billboard.com/articles/news/950222/hot-tours-black-eyed-peas-greenday-metallica (detailing the sales and attendance during one month of the 21st Century
Breakdown world tour); see also David Fagundes, Market Harm, Market Help, and Fair Use, 17
STAN. TECH. L. REV. 359, 36869 (2014) (detailing the failure of courts to realize the full
potential of market help as a consideration during an analysis of the fourth fair use factor).
196

198

Fagundes, supra note 197.

See Imam, supra note 115.
200 Graffiti
Art: From the Streets to High-End Galleries, 1ST WEB DESIGNER,
http://www.1stwebdesigner.com/graffiti-art-streets-to-galleries/ (last visited Apr. 14, 2015).
201 See Imam, supra note 115.
202 See generally id. (discussing the goal of street artists to showcase their work in such a
way that it may become popular, but not commercialized or used in a way that would be
considered selling out).
199

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fair use.203 Fair use is based entirely on objective factors of copyright law,
not on considerations of morality or secondary users good or bad faith.204
As a result, courts may easily lose sight of protecting artistic integrity. 205
American jurisprudence would do well to take a note from French
copyright law in this regard, where the concept of droit moral dartiste, or
artistic moral right, allows artists a degree of control over their copyrighted
works and any subsequent derivative works. 206 If a system similar to
French law were narrowly incorporated into American copyright law so
that the stricter, objective goals of American copyright law could still be
maintained, Seltzer would have had an undeniable right to control the
derivative use of Scream Icon; he could have disabled Green Day from
using his original, creative work in a way that tarnished it.207 However,
since American copyright law is focused on vindicating economic rights,
not personal rights, Seltzer had a much more difficult time trying to
substantiate his claims.208
B. Public Reaction to the Ninth Circuits Holding of Fair Use
Some are unhappy with the Ninth Circuits Seltzer v. Green Day, Inc.
decision.209 For instance, a commentator reacted sarcastically to an online
news article about the outcome of the case: So . . . I take it Green Day
wont object to anyone transforming their art into a different context by
downloading it in a non-commercial context?210 Comments on another
Internet blog demonstrate similar outrage:
This kind of decision[] show[s] that the judges dont have any
respect for the work of the author. . . . The original work has a

203 See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (citing Fisher
v. Dees, 794 F.2d 432, 437 (9th Cir. 1986)).
204 See Leval, supra note 12, at 1125.
205 See id. at 1128.
206 Id.; see also Gilliam v. Am. Broad. Co., 538 F.2d 14, 24 (2d Cir. 1976) (describing the
concept of droit moral dartiste as the right of the artist to have his work attributed to him in
the form in which he created it).
207 See Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 (9th Cir. 2013); Leval, supra note 12, at
112829 (requiring a narrow incorporation of French principles because the adoption of an
American droit moral would displace much of current American copyright law as it now
exists).
208

Gilliam, 538 F.2d at 24.

See Sean Michaels, Green Day Win Court Case over Scream Icon Artwork Rights, THE
GUARDIAN (Aug. 8, 2013, 6:03 AM), http://www.theguardian.com/music/2013/aug/08/greenday-scream-icon-artwork#start-of-comments (scroll to the Comments section at the bottom
of the page and view Vastariners comment from Aug. 8, 2013, at 4:14 PM).
209

210

Id.

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value, and the courts should recognize that someone else is

making money with the derivative work. Why cannot the
original author at least have a cut of that pie?211

Furthermore, articles detailing the Courts opinion often refer to Green

Days use of Scream Icon as ripping off Seltzers artwork.212 This type of
rhetoric indicates the publics lack of general respect for the Ninth Circuits
decision and a sense that the ruling was unfair and against public policy, as
it allowed an innocent artists work to be ripped off and mis-used.213

CONCLUSION
The fair use doctrine is a critical tool to understanding copyright law
and the nexus between copyrights and freedom of expression. Green Days
use of Dereck Seltzers artwork, when analyzed under 17 U.S.C. 107(1)
(4), is clearly not as fair as the Ninth Circuit recently concluded. A strong
case can be made that Green Days use of Scream Icon was not
transformative, was commercial, infringed upon the quantitative and
qualitative values of Seltzers work, and affected the artworks future
market. Holding Green Days use of Scream Icon as fair use does a
disservice to authors of original works who are subject to American
copyright jurisprudence as a matter of public policy.

211

Eleonora Rosati, Transformative Use Victory for Green Day and a Poll Asking What YOU
Think of Fair Use, THE IPKAT (Aug. 8, 2013, 10:21 PM), http://ipkitten.blogspot.com/2013/08/
transformative-use-victory-for-green.html (scroll to the Comments section beneath the
article and view Luciano Ms comment from Aug. 12, 2013, at 16:41 BST).
212 See, e.g., Rick Sanders, Green Day Exits Through the Gift Shop: The Answer, AARON
SANDERS PLLC (Dec. 22, 2011), http://www.aaronsanderslaw.com/uncategorized/green-dayexits-through-the-gift-shop-the-answer; Hrag Vartanian, Green Day Sued by Artist over
Copyright, HYPERALLEGRIC (Mar. 26, 2010), http://hyperallergic.com/4609/green-day-sued-byartist/.
213 See Sanders, supra note 212 (discussing that Seltzer is likely upset that his work has been
ripped off and misused, but was still held to be fairly used).

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v. 49 | 573

EXHIBIT A

Seltzer v. Green Day, Inc., 725 F.3d 1170, 1182 app. A (9th Cir. 2013).

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EXHIBIT B

Seltzer v. Green Day, Inc., 725 F.3d 1170, 1183 app. B (9th Cir. 2013).

599

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v. 49 | 573

EXHIBIT C

Christopher S. Harrison, Dollar Dollar Bill YAll Attorneys Fees for Winning
Defendants in Fair Use Wins, MUSIC LAW SEMINAR, http://musiclaw
seminar.com/2011/12/12/dollar-dollar-bill-yall-attorneys-fees-for-winningdefendants-in-fair-use-wins/ (last visited Apr. 14, 2015).