Fair use/aesthetic functionality save the Green Day

Seltzer v. Green Day, Inc., No. CV 10-2103 (C.D. Cal. Aug. 18, 2011) Seltzer, an artist, sued the band Green Day and related defendants for infringing his rights in Scream Icon, a drawing of a "dramatic image of a human face contorted in the expression of a cry or a scream." Green Day used Scream Icon "as part of a video backdrop that was shown during live performances of Green Day's song East Jesus Nowhere." Scream Icon was reproduced on posters and stickers, including on a wall at Sunset Boulevard and Gardner Avenue. Defendant Staub took a photo of that wall, which was covered with street art and graffiti. His photo showed a torn and weathered Scream Icon poster. Subsequently, Green Day hired him to create video backdrops for its concert tour that would visually represent the tone, mood, and theme of each song to be performed, one of which was East Jesus Nowhere, whose underlying theme is "the hypocrisy of religions." Staub created a 4-minute video backgrop including a composite image based on his photo. Staub "used the portion of his photograph containing the Scream Icon poster, altered the color and contrast, added a brick background, and then superimposed a red spray-painted cross over the modified image." This backdrop was used in concerts from July-November 2009, but not used on any album artwork, merchandise, tickets, or ads. Seltzer sued for copyright and trademark infringement and related state law torts. The court first found fair use. The backdrop was transformative: "[t]he different visual elements Staub added, including graffiti, a brick backdrop, and (especially) the large red cross over the image, considered in connection with the music and lyrics of East Jesus Nowhere," added something new with a further purpose or different character. While the large red cross over the torn Scream Icon poster, according to Staub, represented the "relationship between organized religion and pain and suffering," Seltzer stated that he created Scream Icon to address "themes of youth culture, skateboard culture, [and] insider/outsider culture." Moreover, Seltzer's own testimony about his moral outrage supported a finding of transformativeness, because he said that the use [T]ainted the original message of the image and [ ] made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with….. I make an image, I produce it, I tailor it to my needs, the concept, the content, and then someone comes along, defaces the image, puts a red cross on it. I mean, maliciously devalues the original intent and then shows it to thousands upon thousands of people. Though defendants profited from the concert tour, the commercial nature of the use was "minimal, if not negligible," because they weren't selling the image or directly using it to promote themselves. This weighed only slightly against fair use, and was strongly outweighed by the substantial transformation. Creative works get more protection than fact-based ones (in theory), but published works are more likely to be subject to fair use than unpublished ones. "The fact that Scream Icon was published and appeared on the internet before Green Day used the image is also critical in determining whether the use of Scream Icon qualifies as fair use." So the second factor only weighed slightly against fair use. Amount used: first, the court noted that defendants' use was part of a composite image containing numerous other images and effects. "Even though Defendants used substantial portions of Plaintiff's work, the image of Scream Icon in Staub's video backdrop was but one of many visual elements used to convey the mood, tone, and meaning of Green Day's East Jesus Nowhere." Thus the third factor weighed only slightly in favor of fair use. The court cited Dorling Kindersley, which held that reproducing entire images as a small part of a book with hundreds of other images didn't take the "heart" of the plaintiff's images. Now, in theory, this factor should focus on the plaintiff's work, but I think there is a useful insight here about how placement in a larger context can change what's "taken" from the plaintiff's work. The third factor is, therefore and unsurprisingly, dependent on transformativeness. Market effect: Seltzer had no evidence of harm. No collectors ever refused to buy Seltzer's work because of Green Day's use. Seltzer's declaration said that he once licensed the use of Scream Icon in a music video, and, though he'd been approached for licensing before Green Day's use, he hadn't been approached thereafter. But he failed to offer evidence of any revenues from his license, and Dorling Kindersley also said that the fact of previous licensing doesn't make a market traditional, reasonable, or likely to be developed. The statements about "approaches" were too vague and unsubstantiated to raise a triable issue of fact on harm. Also, transformative use isn't likely to usurp the original or derivative markets for the work. "Given the fundamentally different purposes of the two works, Staub's use of a modified version of the Scream Icon image in the East Jesus Nowhere ideo backdrop cannot reasonably be deemed a market substitute for Plaintiff's original Scream Icon image." The heavy weight of factors one and four favoring defendants outweighed two and three as a matter of law. Seltzer also claimed unfair competition, false designation of origin, and false representation of affiliation under the Lanham Act. But he failed to present admissible evidence that he used Scream Icon as a trademark. He testified that he'd only used it as "a piece of artwork." He did submit a gallery card that used his stage name, Euthanasia, and a small image of a woman looking at a painting of Scream Icon. But that's not enough. "That Plaintiff may have adopted Scream Icon as a means of self-identification simply does not mean he used his Scream Icon image in connection with the sale of goods." The court goes further, unnecessarily and erroneously, saying that "his use of a pseudonym on the card actually undermines his claim of misattribution and unfair competition" because consumers seeing the card would not associate the image with Derek Seltzer but rather with Euthanasia. Separately, even if Seltzer had used Scream Icon as a mark in commerce, his claims would fail as a matter of law because defendants didn't use the image for trademark purposes. The court quoted Int'l Order of Job's Daughters v. Lindeburg and Co., 633 F.2d 912 (9th Cir. 1980), for the proposition that others may copy features of a product "which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product." To figure out whether a use is for functional or trademark purposes, a court must examine the articles themselves, the defendant's merchandising practices, and any evidence that consumers inferred a connection between the defendant's product and the trademark owner. The court offered the recently withdrawn Betty Boop opinion as an example of aesthetic functionality, where the defendant never designated its Betty Boop merchandise as official or otherwise affirmatively indicated sponsorship and failed to show actual confusion. As a matter of law, Seltzer's claims failed under the Job's Daughters test. "Not only did Defendants never give any indicia of sponsorship by Plaintiff, there are not even 'merchandising practices' to speak of in this case." Nor was there evidence of actual confusion. (While the discussion of the recently withdrawn Betty Boop opinion gives grounds for a motion for reconsideration, the court ultimately applied Job's Daughters, which remains good law; any such motion ought to be futile, especially given that unlike both cases the situation here didn't involve any merchandising at all.) Without the Lanham Act claims, the state law claims for unfair competition and dilution also went away.

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