Seltzer v. Green Day, Inc., et al., No. 11-56573 (9th Cir. 2013)
Annotate this CasePlaintiff filed suit against Green Day and others, alleging violations of the Copyright Act, 17 U.S.C. 101 et seq., and the Lanham Act, 15 U.S.C. 1051 et seq., because Green Day used plaintiff's illustration, "Scream Icon," in the video backdrop of its stage show. On appeal, plaintiff challenged the district court's grant of summary judgment in favor of Green Day on all claims and the grant of attorney's fees to Green Day under the Copyright Act. The court concluded that Green Day's use of the illustration was fair use under the Copyright Act where the purpose and character of the use was transformative and not overly commercial; the nature of the work included its status as a widely disseminated work of street art; Green Day's use of the work was not excessive in light of its transformative purpose; and Green Day's use did not affect the value of the piece or of plaintiff's artwork in general. In regards to plaintiff's claims under the Lanham Act, the court concluded that plaintiff failed to establish any trademark rights. The court concluded, however, that the district court clearly erred in finding that plaintiff's claims were objectively unreasonable. Accordingly, the court affirmed the district court's grant of summary judgment but vacated the award of attorneys fees.
Court Description: Copyright / Fair Use. The panel affirmed the district court’s summary judgment in favor of the defendants but vacated the district court’s award of attorneys’ fees in an artist’s action alleging violations of the Copyright Act and the Lanham Act in a rock band’s unauthorized use of an illustration in the video backdrop of its stage show. The panel held that the video backdrop was a fair use under the Copyright Act. First, the purpose and character of the use was transformative because the video altered the expressive content or message of the illustration, and the use was not overly commercial. Second, the illustration was a creative work, but its nature included its status as a widely disseminated work of street art. Third, the defendants copied most of the illustration, but it was not meaningfully divisible. Fourth, the video backdrop did not affect the value of the illustration. The panel affirmed the grant of summary judgment on Lanham Act claims on the basis that the artist failed to establish any trademark rights. Vacating the district court’s award of attorneys’ fees to the defendants under the Copyright Act, the panel held that, despite the defendants’ success on the fair use defense, the plaintiff did not act objectively unreasonably.
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